10808 Federal Register / Vol. 73, No. 40 / Thursday, February 28, 2008 / Notices 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Bain Capital, LLC, 

Thomas H. Lee Partners, L.P., and 

Clear Channel Communications, Inc.; 

Proposed Final Judgement and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Hold Separate 

Stipulation and Order, and Competitive 

Impact Statement have been filed with 

the United States District Court for the 

District of Columbia in United States of 

America v. Bain Capital, LLC, Civil 

Action No. 1:08–cv–00245. On February 

13, 2008, the United States filed a 

Complaint alleging that the proposed 

acquisition by Bain Capital, LLC and 

Thomas H. Lee Partners, L.P. of a 

controlling interest in Clear Channel 

Communications, Inc. would violate 

section 7 of the Clayton Act, 15 U.S.C. 

18. The proposed Final Judgment, filed 

the same time as the Complaint, 

requires Clear Channel to divest radio 

stations in Cincinnati, Ohio; Houston, 

Texas; Las Vegas, Nevada; and San 

Francisco, California, along with certain 

related assets. 

Copies of the Complaint, proposed 

Final Judgment and Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

325 7th Street, NW., Room 215, 

Washington, DC 20530 (telephone: 202–

514–2481, on the Department of 

Justice’s Web site (http:// 

www.usdoj.gov/atr), and at the Office of 

the Clerk of the United States District 

Court for the District of Columbia. 

Copies of these materials may be 

obtained from the Antitrust Division 

upon request and payment of the coping 

fee set by Department of Justice 

regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, and responses thereto, will 

be published in the Federal Register 

and filed with the Court. Comments 

should be directed to John Read, Chief, 

Litigation III section, Antitrust Division, 

Department of Justice, Washington, DC 

20530 (telephone: 202–307–0462). 

Patricia A. Brink, 

Deputy Director of Operations. 

United States District Court for the 

District of Columbia 

United States of America, Department of 

Justice, Antitrust Division, 325 7th Street, 

NW., Suite 300, Washington, DC 20530, 

Plaintiff, v. Bain Capital, LLC, 111 

Huntington Ave., Boston, MA 02199, and 

Thomas H. Lee Partners, L.P., 100 Federal St. 

35th Fl., Boston, MA 02110, and Clear 

Channel Communications, Inc., 200 E. Basse 

Rd., San Antonio, TX 78209, Defendants. 

Civil Action No.: 1:08–cv–00245 

Filed: Feb. 13, 2008 

Assigned to: Robertson, James 

Assign. Date: 2/13/2008 

Description: Antitrust 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil action to enjoin the proposed 

acquisition of Clear Channel 

Communications Inc. (‘‘Clear Channel’’) 

by a private equity group of investors 

led by Bain Capital, LLC (‘‘Bain’’) and 

Thomas H. Lee Partners, L.P. (‘‘THL’’), 

and to obtain other relief as appropriate. 

Plaintiff United States alleges as 

follows: 

I. Nature of the Action 

1. Bain and THL, two of the world’s 

leading private investment firms, are 

planning to acquire, each through 

various affiliated funds, substantial 

ownership interests in Clear Channel, 

the largest operator of radio stations in 

the United States (the ‘‘transaction’’). 

The anticipated value of the transaction 

is $28 billion. 

2. After the transaction, Bain and THL 

each would control at least 35 percent 

of the voting interests in Clear Channel 

and each would designate four members 

to the 12 member Clear Channel Board 

of Directors. Together, Bain and THL 

would control at least 70 percent of the 

voting interests of Clear Channel and 

designate two-thirds of the members of 

its Board of Directors. Further, Bain and 

THL, either directly or indirectly 

through management teams they install, 

typically manage and operate the assets 

in which they invest. 

3. Bain and THL, through affiliated 

funds and co-investment vehicles, have 

substantial ownership interests in 

Cumulus Media Partners LLC (‘‘CMP’’), 

another large nationwide operator of 

radio stations. Bain and THL each 

control 25 percent of the voting interests 

of CMP and designate two members to 

its eight member Board of Directors. 

Together, Bain and THL control 50 

percent of the voting interests of CMP 

and designate one-half of the members 

of its Board of Directors. CMP operates 

radio stations that compete head-tohead with Clear Channel radio stations 

in Cincinnati, Ohio and Houston/ 

Galveston, Texas (‘‘Houston’’). 

4. After the transaction, Bain and THL 

would have governance rights in Clear 

Channel and CMP sufficient to enable 

Bain and THL, individually or together, 

to control or influence the companies’

competitive decisions to produce an 

anticompetitive outcome in markets 

where both Clear Channel and CMS are 

significant competitors. Accordingly, 

Bain’s and THL’s acquisitions of 

substantial partial ownership interests 

in Clear Channel would substantially 

lessen competition between Clear 

Channel and CMP in the sale of radio 

advertising in Cincinnati and Houston 

in violation of Section 7 of the Clayton 

Act, as amended, 15 U.S.C. 18. 

5. THL, through affiliated funds and 

co-investment vehicles, currently olds a 

20 percent equity interest and a 14 

percent voting interest in Univision 

Communications, Inc. (‘‘Univision’’), a 

large nationwide operator of radio 

stations that broadcast primarily in 

Spanish-language format. THL 

designates three members to Univision’s 

17 member Board of Directors. 

Univision operates radio stations that 

compete head-to-head with Clear 

Channel’s Spanish-language radio 

stations in Houston; Las Vegas, Nevada; 

and San Francisco, California. 

6. After the transaction, THL would 

have governance rights in Clear Channel 

and Univision sufficient to influence the 

companies’ competitive decisions to 

produce an anticompetitive outcome in 

markets where both Clear Channel and 

Univision are significant competitors. 

Accordingly, THL’s acquisition of a 

substantial partial ownership interest in 

Clear Channel would substantially 

lessen competition in the sale of 

Spanish-language radio advertising in 

Houston, Las Vegas, and San Francisco 

in violation of Section 7 of the Clayton 

Act, as amended, 15 U.S.C. 18. 

II. Jurisdiction and Venue 

7. Plaintiff United States brings this 

action under section 15 of the Clayton 

Act, as amended, 15 U.S.C. 25, to 

prevent and restrain defendants from 

violating section 7 of the Clayton Act, as 

amended, 15 U.S.C. 18. 

8. Bain and THL, through CMP and 

Univision, and Clear Channel sell radio 

advertising to local and national 

advertisers, a commercial activity that 

substantially affects and is in the flow 

of interstate commerce. This court has 

jurisdiction over the subject matter of 

this action pursuant to sections 15 and 

16 of the Clayton Act, 15 U.S.C. 25, 26, 

and 28 U.S.C. 1331, 1337. 

9. Bain, THL, and Clear Channel 

transact business within the District of 

Columbia. Venue is therefore proper in 

this Court pursuant to 15 U.S.C. 22 and 

28 U.S.C. 1391. 


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III. Defendants and Other Relevant 

Entities 

10. Clear Channel is a diversified 

media company incorporated in Texas 

and headquartered in San Antonio, 

Texas. Clear Channel owns various 

media outlets including radio stations, 

domestic and international outdoor 

advertising assets, television stations, 

and a media representation firm. Radio 

broadcasting is Clear Channel’s largest 

business segment, representing over 50 

percent of Clear Channel’s total revenue. 

As of February 5, 2008, Clear Channel 

owned 833 radio stations in the United 

States, 508 of which were located 

within the top 100 markets as ranked by 

Arbitron, an international media 

marketing and research firm, including 

stations in Cincinnati, Houston, Las 

Vegas, and San Francisco. 

11. Bain is a Delaware limited liability 

company headquartered in Boston, 

Massachusetts. Bain is one of the 

world’s leading private investment firms 

with over $40 billion in assets under 

management. 

12. THL is a Delaware limited 

partnership headquartered in Boston, 

Massachusetts and also is one of the 

world’s leading private investment 

firms. THL currently manages 

approximately $12 billion of committed 

capital. 

13. Bain and THL raise pools of 

capital from private investors, 

controlling and managing that capital 

through private equity funds and coinvestment vehicles that invest in 

discrete opportunities, such as venture 

capital, public equity, and leveraged 

debt assets. 

14. CMP is a limited liability 

company formed in 2005 that is owned 

by Bain, THL, Cumulus Broadcasting 

Inc., the Blackstone Group, and their 

affiliates. As of February 5, 2008, CMP 

owned 34 radio stations in various 

markets, including Cincinnati and 

Houston. 

15. Univision is headquartered in 

New York City and is the largest 

broadcaster of Spanish-language 

television programming in the United 

States. Univision also owns 70 radio 

stations that broadcast in Spanish 

language in various markets, including 

Houston, Las Vegas, and San Francisco. 

Univision is owned and operated by five 

private equity firms: THL, Haim Saban, 

TPG Capital, Providence Equity, 

Madison Dearborn, and their affiliates. 

IV. The Proposed Acquisition 

16. Clear Channel, Bain, and THL 

have agreed that funds and coinvestment vehicles under the direction 

of Bain (collectively ‘‘Bain CC 

Affiliates’’) and funds and coinvestment vehicles under the direction 

of THL (collectively ‘‘THL CC 

Affiliates’’) will purchase a controlling 

interest in Clear Channel. Under their 

proposal, Bain and THL each will 

acquire at least a 35 percent voting and 

economic interest in Clear Channel, 

with the remaining interest of up to 30 

percent staying in the hands of those 

current Clear Channel investors and 

option-holders who elect to retain an 

equity interest in Clear Channel rather 

than to receive cash for their shares and/ 

or stock options. Under the purchase 

arrangement, Bain and THL, through 

Bain CC Affiliates and THL CC 

Affiliates, each will also acquire the 

right to designate four directors of the 

12 member Clear Channel Board of 

Directors. If the transaction is 

consummated, Bain and THL together 

will control at least 70 percent of the 

voting interests of Clear Channel and 

designated two-thirds of the members of 

the Board of Directors. 

V. Relevant Markets 

A. Relevant Product Markets 

17. Radio Advertising. Radio stations 

employ various formats for their 

programming, such as Adult 

Contemporary, Sports, or Rock. A 

station’s format can be important in 

determining the size and characteristics 

of its listening audience. Companies 

that operate radio stations, like Clear 

Channel, CMP, and Univision, sell 

advertising time to local and national 

advertisers in each geographic market 

where they operate those stations. 

Advertising rates charged by a radio 

station are based primarily on the 

station’s ability to attract listening 

audiences having certain demographic 

characteristics in the market area that 

advertisers want to reach, as well as on 

the number of stations and the relative 

demand for radio in the market. 

18. Many local and national 

advertisers purchase radio advertising 

time because they consider it preferable 

to advertising in other media to meet 

their specific needs. They may consider 

radio advertising time to be more costeffective than other media to reach their 

target audiences. They may also 

consider radio advertising to be more 

efficient than other media to reach their 

target audiences. Additionally, radio 

stations render certain services or 

promotional opportunities to advertisers 

that the advertisers cannot exploit as 

effectively using other media. For these 

reasons, many local and national 

advertisers who purchase radio 

advertising time view radio as a 

necessary advertising medium, 

sometimes as a complement to other 

media. A substantial number of 

advertisers with strong radio 

preferences would not turn to other 

media if faced with a small but 

significant increase in the price of 

advertising time on radio stations. 

19. Radio stations generally can 

identify advertisers with strong radio 

preferences. Radio stations also 

negotiate prices individually with 

advertisers; consequently, radio stations 

can charge different advertisers different 

prices. Because of this ability to price 

discriminate among customers, radio 

stations may charge higher prices to the 

substantial number of advertisers that 

view radio as particularly effective for 

their needs, while maintaining lower 

prices for other advertisers. 

20. In the event of a price increase in 

radio advertising time, some local and 

national advertisers may switch some of 

their advertising to other media rather 

than absorb a price increase in radio 

advertising time. However, the existence 

of such advertisers would not prevent 

radio stations from profitably raising 

their prices by a small but significant 

amount for a substantial number of 

advertisers that would not switch. 

21. Accordingly, the provision of 

advertising time on radio stations is a 

line of commerce and a relevant product 

market within the meaning of section 7 

of the Clayton Act. 

22. Spanish-language Radio 

Advertising. In markets with a large 

Hispanic population, many local and 

national advertisers also consider 

Spanish-language radio to be 

particularly effective or necessary to 

reach their desired customers, 

particularly consumers who listen 

predominantly or exclusively to 

Spanish-language radio. A substantial 

number of these advertisers consider 

Spanish-language radio, either alone or 

as complement to other media, to be the 

most effective way to reach their target 

audience, and do not consider other 

media, including non-Spanish-language 

radio, to be a reasonable substitute. 

These advertisers would not turn to 

other media, including radio that is not 

broadcast in Spanish, if faced with a 

small but significant increase in the 

price of advertising time on Spanishlanguage radio. 

23. Accordingly, the provision of 

advertising time on Spanish-language 

radio stations to these advertisers is a 

line of commerce and a relevant product 

market within the meaning of section 7 

of the Clayton Act. 

B. Relevant Geographic Markets 

24. Local and national advertisers buy 

radio advertising time on Clear Channel, 


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CMP, and Univision radio stations 

within areas defined by an Arbitron 

Metro Survey Area (‘‘MSA’’). An MSA 

is the geographic unit that is widely 

accepted by radio stations, advertisers, 

and advertising agencies as the standard 

geographic market to use in evaluating 

radio audience size and composition. 

25. Local and National advertising 

that is placed on radio stations in an 

MSA is aimed at reaching listening 

audiences in that MSA. Radio stations 

in other MSAs do not provide effective 

access to these audiences. If there were 

a small but significant price increase 

within an MSA, an insufficient number 

of advertisers would switch their 

advertising time purchases to radio 

stations outside the MSA to make the 

price increase unprofitable. 

26. In the Houston and Cincinnati 

MSAs, Clear Channel and CMP stations 

compete against each other and against 

other stations in the provision of radio 

advertising time to advertisers, 

regardless of the language broadcast 

over the station. If there were a small 

but significant increase in radio 

advertising prices within the Houston or 

Cincinnati MSA, an insufficient number 

of advertisers seeking to reach listeners 

in the Houston or Cincinnati MSA 

would switch their advertising time 

purchases to radio stations outside that 

MSA to make the price increase 

unprofitable. Accordingly, the Houston 

and Cincinnati MSAs (the ‘‘Overlap 

Markets’’) are each relevant geographic 

markets within the meaning of section 

7 of the Clayton Act. 

27. In the Houston, Las Vegas, and 

San Francisco MSAs, Clear Channel and 

Univision compete against each other in 

the provision of Spanish-language radio 

advertising time to advertisers. If there 

were a small but significant increase in 

Spanish-language radio advertising 

prices in the Houston, Las Vegas, or San 

Francisco MSAs, an insufficient number 

of advertisers seeking to reach listeners 

in the any of those MSAs would switch 

their Spanish-language advertising 

purchases to radio stations outside that 

MSA to make the price increase 

unprofitable. Accordingly, the Houston, 

Las Vegas, and San Francisco MSAs (the 

‘‘Spanish-language Overlap Markets’’) 

are each relevant geographic markets 

within the meaning of section 7 of the 

Clayton Act. 

VI. Harm to Competition 

A. Competition in the Relevant 

Geographic Markets 

1. Radio Advertising in the Overlap 

Markets 

28. Advertisers who use radio to reach 

their target audience select radio 

stations on which to advertise based 

upon a number of factors including, 

among others, the size of the station’s 

audience and the characteristics of its 

audience. Many advertisers seek to 

reach a large percentage of their target 

audience by selecting those stations 

whose listening audience is highly 

correlated to their target audience. 

29. Clear Channel and CMP 

vigorously compete for listeners and 

closely monitor each other’s competitive 

position in the Cincinnati and Houston 

MSAs. Their stations are similarly 

formatted and programmed with an eye 

toward attracting listeners from each 

other. 

30. Clear Channel and CMP stations 

in Houston and Cincinnati also 

currently compete vigorously for radio 

advertisers who seek to reach the 

specific demographic groups listening to 

their stations. For many local and 

national advertisers buying radio 

advertising time in the Houston and 

Cincinnati markets, Clear Channel and 

CMP stations are each other’s next best 

substitutes. During individualized rate 

negotiations, the substantial number of 

advertisers who desire to reach these 

listeners can benefit from this 

competition by ‘‘playing off’’ Clear 

Channel and CMP stations against each 

other to reach better terms. 

31. Radio station ownership in 

Houston and Cincinnati is highly 

concentrated, with Clear Channel and 

CMP’s combined listener share 

exceeding 34 percent in Houston and 59 

percent in Cincinnati. Additionally, 

Clear Channel and CMP’s combined 

advertising revenue share exceeds 37 

percent in Houston and 65 percent in 

Cincinnati. 

32. Using a measure of market 

concentration called the HerfindahlHirschman Index (‘HHI’’), explained in 

Appendix A annexed hereto, 

concentration in these markets would 

increase significantly as a result of the 

acquisition, with post-acquisition HHIs 

of approximately 2,100 in Houston and 

approximately 4,700 in Cincinnati, well 

above the 1,800 threshold at which the 

Department normally considers a 

market to be highly concentrated. 

2. Spanish-Language Radio 

Advertising Overlap Markets 

33. Clear Channel and Univision are 

currently vigorous competitors and 

closely monitor each other’s competitive 

position for Spanish-language listeners 

in the Houston, Las Vegas, and San 

Francisco MSAs, each of which has a 

large Hispanic population. Their 

stations in these markets are similarly 

formatted and programmed with an eye 

toward attracting Spanish-language 

listeners from each other. 

34. Clear Channel and Univision 

stations also currently compete 

vigorously for radio advertisers who 

seek to reach Spanish-language 

listeners. For many local and national 

advertisers buying Spanish-language 

radio advertising time in the Houston, 

Las Vegas, and San Francisco Spanishlanguage Overlap Markets, Clear 

Channel and Univision stations are each 

other’s next best substitutes. During 

individualized rate negotiations, the 

substantial number of advertisers who 

desire to reach these listeners can 

benefit from this competition by 

‘‘playing off’’ Clear Channel and 

Univision stations against each other to 

reach better terms. 

35. Spanish-language radio station 

ownership in Houston, Las Vegas, and 

San Francisco is highly concentrated. 

Clear Channel and Univision’s 

combined Spanish-language listener 

share exceeds 75 percent in Houston, 73 

percent in Las Vegas, and 70 percent in 

San Francisco. Additionally, Clear 

Channel and Univision’s combined 

Spanish-language advertising revenue 

share exceeds 79 percent in Houston, 78 

percent in Las Vegas, and 63 percent in 

San Francisco. 

36. Using the Herfindahl-Hirschman 

Index, concentration in these markets 

would increase significantly as a result 

of the acquisition, with post-acquisition 

HHIs exceeding 6,500 in all three 

markets, well above the 1,800 threshold 

at which the Department normally 

considers a market to be highly 

concentrated. 

B. This Acquisition Would Substantially 

Lessen Competition 

1. Radio Advertising in Houston and 

Cincinnati 

37. Clear Channel is one of only a few 

radio companies competing with CMP 

in the sale of radio advertising in 

Houston and Cincinnati, and within 

those markets, the two companies are 

each other’s next best substitutes for 

advertisers seeking to reach several key 

demographic groups. Bain and THL 

together possess the ability to control 

CMP; they hold 50 percent of the voting 

and equity interests and have the right 

to choose half of the members of its 

Board of Directors. CMP’s Board of 

Directors cannot make decisions 

without the agreement of either Bain or 

THL, which also have access to CMP’s 

non-public, competitively sensitive 

information and its officers and 

employees. These ownership interests 

and associated rights give each of Bain 

and THL, as well as Bain and THL 

acting together, influence over, if not 

outright control of, CMP’s management 

decisions. 


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38. Upon consummation of their 

proposed acquisition of interests in 

Clear Channel, defendants Bain and 

THL together would also control Clear 

Channel. Together, they would own at 

least 70 percent of the equity and voting 

interests of Clear Channel and have the 

right to select eight of Clear Channel’s 

12 directors. In addition, Bain and THL 

would have access to Clear Channel’s 

non-public, competitively sensitive 

information and to the company’s 

officers and employees. After the 

acquisition, each of Bain and THL, as 

well as Bain and THL acting together, 

would have influence over, if not 

outright control of, Clear Channel’s 

management decisions. 

39. Bain or THL, or Bain and THL 

acting together, would have the 

incentive and ability to use their 

ownership, control and influence, and 

access to information as to both Clear 

Channel and CMP to reduce 

competition between the companies in 

markets where they are significant 

competitors, resulting in an increase in 

prices for a significant number of 

advertisers. The Houston and Cincinnati 

radio markets are highly concentrated, 

and these advertisers will find it 

difficult or impossible to ‘‘buy around’’

Clear Channel and CMP, i.e., to 

effectively reach their targeted audience 

without using Clear Channel or CMP 

radio stations. Thus, Bain and THL’s 

proposed acquisitions of ownership 

interests in Clear Channel, if 

consummated, would substantially 

reduce competition for radio advertising 

in the Houston and Cincinnati markets. 

2. Spanish-language Radio 

Advertising 

40. Clear Channel is one of only a few 

radio companies competing with 

Univision for Spanish-language radio 

advertising time in Houston, Las Vegas, 

and San Francisco, and within those 

markets, the two companies are each 

other’s next best substitutes for 

advertisers targeting Spanish-language 

listeners. THL currently has a 20 

percent equity interest and a 14 percent 

voting interest in Univision, as well as 

the right to designate three Univision 

board members. THL also has access to 

Univision’s non-public, competitively 

sensitive information and its officers 

and employees. Significant corporate 

decisions at Univision require the assent 

of three of its five owners. THL’s 

ownership interest and associated rights 

give it influence over Univision’s 

management decisions. 

41. Upon consummation of the 

proposed acquisition of Clear Channel, 

defendant THL would own at least 35 

percent of the equity and voting interest 

of Clear Channel, as well as a right to 

choose four of its 12 directors. In 

addition, after the acquisition, THL 

would have access to Clear Channel’s 

non-public, competitively sensitive 

information and its officers and 

employees. THL’s ownership interest 

and associated rights would give it 

influence over Clear Channel’s 

management decisions. 

42. THL would have the incentive and 

ability to use its ownership, control and 

influence, and access to information as 

to both Clear Channel and Univision to 

reduce competition between the 

companies in markets where they are 

significant competitors, resulting in an 

increase in prices for a significant 

number of advertisers. The Houston, Las 

Vegas, and San Francisco radio markets 

are highly concentrated, and these 

advertisers will find it difficult or 

impossible to ‘‘buy around’’ Clear 

Channel and Univision, i.e., to 

effectively reach their targeted audience 

without using Clear Channel or 

Univision radio stations. Thus, THL’s 

proposed acquisition of an ownership 

interest in Clear Channel, if 

consummated, would substantially 

reduce competition in the Spanishlanguage Overlap Markets. 

C. Entry Conditions 

43. Entry of new radio stations into 

the relevant geographic markets would 

not be timely, likely, or sufficient to 

mitigate the competitive harm likely to 

result from this acquisition. Entry could 

occur by obtaining a license for new 

radio spectrum or by reformatting an 

existing station. 

44. Acquisition of new radio spectrum 

is highly unlikely because spectrum is 

a scarce and expensive commodity. 

45. Reformatting by existing stations 

in any of the relevant geographic 

markets would not be sufficient to 

mitigate the competitive harm likely to 

result from this acquisition. For those 

stations in these markets that have large 

shares in other coveted demographics, a 

format shift solely in response to small 

but significant increases in price by 

Clear Channel, CMP, or Univision is not 

likely because it would not be 

profitable. For those radio stations that 

may have incentives to change formats 

in response to small but significant 

increases in price by Clear Channel, 

CMP, and Univision, their shift would 

not be sufficient to mitigate the 

anticompetitive effects resulting from 

this acquisition. 

VIII. Violation Alleged 

46. Each and every allegation in 

paragraphs 1 through 45 of this 

Complaint is here realleged with the 

same force and effect as though said 

paragraphs were here set forth in full. 

47. The effect of the proposed 

acquisition of interests in Clear Channel 

by Bain and THL would be to 

substantially lessen competition in 

interstate trade and commerce, in 

violation of Section 7 of the Clayton 

Act. 

48. Unless restrained, the transaction 

would likely have the following effects, 

among others, in the provision of radio 

advertising and Spanish-language radio 

advertising in the relevant geographic 

markets: 

a. competition in the sale and 

provision of advertising on radio 

stations in the relevant markets would 

be substantially lessened or eliminated; 

and 

b. the prices for advertising on radio 

stations in the relevant markets would 

likely increase, and the quality of 

services would likely decline. 

IX. Requested Relief 

49. The plaintiff requests: 

a. That Bain’s and THL’s proposed 

acquisitions of interests in Clear 

Channel be adjudged to violate Section 

7 of the Clayton Act; 

b. That the defendants and all persons 

acting on their behalf be permanently 

enjoined and restrained from 

consummating the proposed 

acquisitions or from entering into or 

carrying out any agreement, 

understanding, or plan, the effect of 

which is to bring radio stations in the 

relevant markets under common 

ownership or control; 

c. That the United States be awarded 

the costs of this action; and 

d. That the United States be granted 

such other and further relief as the 

Court may deem just and proper. 

Dated: February 13, 2008. 

Respectfully submitted, 

For Plaintiff United States: 

Thomas O. Barnett (D.C. Bar No. 426840), 

Assistant Attorney General 

David L. Meyer, 

Deputy Assistant Attorney General 

Patricia A. Brink, 

Deputy Director of Operations 

John R. Read, 

Chief, Litigation III Section, 

Nina B. Hale, 

Assistant Chief, Litigation III Section 

Christopher M. Ries, 

Daniel McCuaig (D.C. Bar No. 478199), 

Attorneys for the United States, Litigation III 

Section, Antitrust Division, United States 

Department of Justice, 325 7th Street, NW., 

Suite 300, Washington, DC 20530 


rwilkins on PROD1PC63 with NOTICES
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Certificate of Service 

I hereby certify that on February 13, 

2008, I caused a copy of the foregoing 

Complaint, proposed Final Judgment, 

Competitive Impact Statement, Hold 

Separate Stipulation and Order, and 

Explanation of Consent Decree 

Procedures to be served on the 

defendants in this matter in the manner 

set forth below: 

By electronic mail and hand delivery: 

Counsel for Defendants Bain Capital, LLC 

and Thomas H. Lee Partners, L.P., 

James M. ‘‘Mit’’ Spears, 

Ropes & Gray LLP, 

700 12th Street, NW., Suite 900, Washington, 

DC 20005–3948, Telephone: (202) 508–4681, 

Facsimile: (202) 383–8320, E-mail: 

mit.spears@ropesgray.com. 

Counsel for Defendant Clear Channel 

Communications, Inc., 

Phillip A. Proger, 

Jones Day, 

51 Louisiana Avenue, NW., Washington, DC 

20001–2113, Telephone: (202) 879–4668, 

Facsimile: (202) 626–1700, E-mail: 

paproger@jonesday.com. 

Daniel McCuaig (D.C. Bar No. 478199), 

United States Department of Justice, 

Antitrust Division, Litigation III Section, 325 

Seventh Street, NW., Suite 300, Washington, 

DC 20530, Telephone: (202) 307–0520, 

Facsimile: (202) 514–7308, E-mail: 

daniel.mccuaig@usdoj.gov. 

Appendix A Definition of HHI 

The term ‘‘HHI’’ means the 

Herfindahl-Hirschman Index, a 

commonly accepted measure of market 

concentration. The HHI is calculated by 

squaring the market share of each firm 

competing in the market and then 

summing the resulting numbers. For 

example, for a market consisting of four 

firms with shares of 30, 30, 20, and 20 

percent, the HHI is 2,600 (30 2 + 30 2 + 

20 2 + 20 2 = 2,600). The HHI takes into 

account the relative size and 

distribution of the firms in a market. It 

approaches zero when a market is 

occupied by a large number of firms of 

relatively equal size and reaches its 

maximum of 10,000 when a market is 

controlled by a single firm. The HHI 

increases both as the number of firms in 

the market decreases and as the 

disparity in size between those firms 

increases. 

Markets in which the HHI is between 

1000 and 1800 are considered to be 

moderately concentrated, and markets 

in which the HHI is in excess of 1800 

points are considered to be highly 

concentrated. Transactions that increase 

the HHI by more than 100 points in 

highly concentrated markets 

presumptively raise significant antitrust 

concerns under the Department of 

Justice and Federal Trade Commission 

1992 Horizontal Merger Guidelines. 

United States District Court for the 

District of Columbia 

United States Of America, Department of 

Justice, Antitrust Division 325 7th Street, 

NW., Suite 300 Washington, DC 20530, 

Plaintiff, v. Bain Capital, LLC 111 Huntington 

Ave., Boston, MA 02199, and Thomas H. Lee 

Partners L.P., 100 Federal St. 35th Fl. Boston, 

Massachusetts 02110, and Clear Channel 

Communications, Inc. 200 E. Basse Rd., San 

Antonio, TX 78209, Defendants. 

Civil Action No.: 1 :08-cv-00245 

Filed: Feb. 13, 2008 

Assigned to: Robertson, James 

Assign. Date: 2/13/2008 

Description: Antitrust 

Final Judgment 

Whereas, plaintiff, United States of 

America, filed its Complaint on 

February 13, 1998, the United States 

and Defendants Bain Capital, LLC 

(‘‘Bain’’), Thomas H. Lee Partners, L.P. 

(‘‘THL’’), and Clear Channel, by their 

respective attorneys, have consulted to 

entry of this Final judgment without 

trial or adjudication of any issue of fact 

or law, and without this Final Judgment 

constituting any evidence against or 

admission by any party regarding any 

issue of fact or law; 

And whereas, defendants agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And whereas, the essence of this Final 

Judgment is the prompt and certain 

divestiture of certain rights or assets by 

defendants to assure that competition is 

not substantially lessened; 

And whereas, the United States 

requires defendants to make certain 

divestitures for the purpose of 

remedying the loss of competition 

alleged in the Complaint; 

And whereas, defendants have 

represented to the United States that the 

divestitures required below can and will 

be made and that defendants will later 

raise no claim of hardship or difficulty 

as grounds for asking the Court to 

modify any of the divestiture provisions 

contained below; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the parties, it is ordered, 

adjudged and decreed: 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against defendants under Section 7 of 

the Clayton Act, as amended, 15. U.S.C. 

18. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Bain’’ means Bain Capital, LLC, a 

Delaware limited liability company 

headquartered in Boston, 

Massachusetts, its directors, officers, 

partners, managers, employees, agents, 

representatives, successors, and assigns; 

and its joint ventures, subsidiaries, 

partnerships, divisions, groups, 

affiliates, investment funds, hedge 

funds, and certain other private equity 

investment vehicles controlled or 

managed by Bain Capital Partners, LLC, 

and the respective directors, officers, 

general partners, managers, employees, 

agents, representatives, successors, and 

assigns of each. 

B. ‘‘THL’’ means Thomas H. Lee 

Partners, L.P., a Delaware limited 

partnership headquartered in Boston, 

Massachusetts, its directors, officers, 

partners, managers, employees, agents, 

representatives, successors, and assigns; 

and its joint ventures, subsidiaries, 

partnerships, divisions, groups, 

affiliates, investment funds, hedge 

funds, and certain other private equity 

investment vehicles controlled or 

managed by Thomas H. Lee Partners, 

L.P., and the respective directors, 

officers, general partners, managers, 

employees, agents, representatives, 

successors, and assigns of each. 

C. ‘‘Clear Channel’’ means Clear 

Channel Communications, Inc., a Texas 

corporation headquartered in San 

Antonio, Texas, its directors, officers, 

managers, agents and employees, its 

successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents and employees. 

D. ‘‘Univision’’ means Univision 

Communications, Inc., a Delaware 

corporation headquartered in Los 

Angeles, California, its directors, 

officers, managers, agents and 

employees, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

E. ‘‘BMP–Univision Holdings’’ means 

Broadcasting Media Partners, Inc., a 

Delaware corporation headquartered in 

New York that holds all of Univision’s 

outstanding shares, its directors, 

officers, managers, agents and 

employees, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

F. ‘‘CMP Susquehanna’’ means CMP 

Susquehanna Holdings, Corp., a 

Delaware corporation headquartered in 

Atlanta that is owned by Cumulus 

Media Partners, its directors, officers, 

managers, agents and employees, its 


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successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

G. ‘‘Cumulus Media Partners’’ means 

Cumulus Media Partners, LLC, a 

Delaware limited liability company 

headquartered in Atlanta, its directors, 

officers, managers, agents and 

employees, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

H. ‘‘MSA’’ means Metro Survey Area. 

A Metro Survey Area is a geographical 

area in which Arbitron, a radio industry 

survey company, collects listener data 

to aid radio stations, advertisers, and 

advertising agencies in evaluating radio 

audience size and composition. 

I. ‘‘Cincinnati’’ means the Cincinnati, 

Ohio MSA. 

J. ‘‘Houston’’ means the Houston/ 

Galveston, Texas MSA. 

K. ‘‘Las Vegas’’ means the Las Vegas, 

Nevada MSA. 

L. ‘‘San Francisco’’ means the San 

Francisco, California MSA. 

M. ‘‘WLW’’ means the radio station 

WLW-AM located in Cincinnati owned 

by defendant Clear Channel. 

N. ‘‘WKFS’’ means the radio station 

WKFS-FM located in Cincinnati owned 

by defendant Clear Channel. 

O. ‘‘WOFX’’ means the radio station 

WOFX–FM located in Cincinnati owned 

by defendant Clear Channel. 

P. ‘‘WNNF’’ means the radio station 

WNNF located in Cincinnati owned by 

defendant Clear Channel. 

Q. ‘‘KLOL’’ means the radio station 

KLOL–FM located in Houston owned by 

defendant Clear Channel. 

R. ‘‘KHMX’’ means the radio station 

KHMX–FM located in Houston owned 

by defendant Clear Channel. 

S. ‘‘KTBZ’’ means the radio station 

KTBZ–FM located in Houston owned by 

defendant Clear Channel. 

T. ‘‘KWID’’ means the radio station 

KWID–FM located in Las Vegas owned 

by defendant Clear Channel. 

U. ‘‘KSJO’’ means the radio station 

KSJO–FM located in San Francisco 

owned by defendant Clear Channel. 

V. ‘‘Cincinnati Assets’’ means either 

(1) WLW and WKFS or, at the discretion 

of the defendants, (2) WOFX and 

WNNF. 

W. ‘‘Houston Assets’’ means either (1) 

KHMX or, at the discretion of the 

defendants, (2) KTBZ. 

X. ‘‘Houston Spanish-language 

Assets’’ means KLOL. 

Y. ‘‘Las Vegas Spanish-language 

Assets’’ means KWID. 

Z. ‘‘San Francisco Spanish-language 

Assets’’ means KSJO. 

AA. ‘‘Clear Channel Assets’’ means 

collectively, the Cincinnati Assets and 

the Houston Assets. 

AB. ‘‘Clear Channel Spanish-language 

Assets’’ means, collectively, the 

Houston Spanish-language Assets, Las 

Vegas Spanish-language Assets, and San 

Francisco Spanish-language Assets. 

AC. ‘‘Divestiture Assets’’ means all of 

the assets, tangible or intangible, used in 

the operations of the Clear Channel 

Assets and the Clear Channel Spanishlanguage Assets, including, but not 

limited to: (i) All licenses, permits, 

authorizations, and applications 

therefor issued by the Federal 

Communications Commission (‘‘FCC’’) 

and other government agencies related 

to the Clear Channel Assets and the 

Clear Channel Spanish-language Assets; 

(ii) all contracts (including 

programming contracts and rights), 

agreements, leases, and commitments 

and understandings of defendants 

relating to the operations of the Clear 

Channel Assets and the Clear Channel 

Spanish-language Assets; (iii) all 

interest in real property (owned or 

leased) relating to the transmitter 

facilities of the Clear Channel Assets 

and the Clear Channel Spanish-language 

Assets and all items of tangible property 

used in the operation of the Clear 

Channel Assets and the Clear Channel 

Spanish-language Assets at such 

transmitter facilities; (iv) all interest in 

the real property lease relating to the 

studios of the Clear Channel Assets and 

the Clear Channel Spanish-language 

Assets; (v) all broadcast equipment, 

office equipment, office furniture, 

fixtures, materials, supplies, and other 

tangible property used in the operation 

of the Clear Channel Assets and the 

Clear Channel Spanish-language Assets; 

(vi) all interests in trademarks, service 

marks, trade names, copyrights, patents, 

slogans, programming materials, and 

promotional materials relating to the 

Clear Channel Assets and the Clear 

Channel Spanish-language Assets; (vii) 

all customer lists, accounts, and credit 

records relating to the Clear Channel 

Assets and the Clear Channel Spanishlanguage Assets; and (viii) all other 

records maintained by defendants in 

connection with the Clear Channel 

Assets and the Clear Channel Spanishlanguage Assets; however, assets that: 

(a) Are principally devoted to the 

operation of stations other than the 

Clear Channel Assets and the Clear 

Channel Spanish-language Assets or to 

the operation of their parent companies, 

and are not necessary to the operation 

of the Clear Channel Assets and the 

Clear Channel Spanish-language Assets 

shall not be included within the 

Divestiture Assets; or (b) are part of a 

shared group of like assets (including, 

but not limited to, microphones and 

office supplies) shall be allocated to 

Clear Channel Assets and Clear Channel 

Spanish-language Assets, and thus to 

Divestiture Assets, only in proportion 

with their use by the Clear Channel 

Assets or the Clear Channel Spanishlanguage Assets. 

AD. ‘‘Clear Channel Divestiture 

Assets’’ are the Divestiture Assets 

relating to the Clear Channel Assets. 

AE. ‘‘Clear Channel Spanish-language 

Divestiture Assets’’ are the Divestiture 

Assets relating to the Clear Channel 

Spanish-language Assets. 

AF. ‘‘Acquirer’’ means the entity or 

entities to whom defendants divest any 

Divestiture Assets. 

III. Applicability 

A. This Final Judgment applies to 

THL, Bain, and Clear Channel, as 

defined above, and all other persons in 

active concert or participation with any 

of them who receive actual notice of this 

Final Judgment by personal service or 

otherwise. 

B. If, prior to complying with Sections 

IV and V of this Final Judgment, 

Defendants sell or otherwise dispose of 

all or substantially all of their assets or 

of lesser business units that include the 

Divestiture Assets, they shall require the 

purchaser to be bound by the provisions 

of this Final Judgment. Defendants need 

not obtain such an agreement from the 

acquirers of the assets divested pursuant 

to this Final Judgment. 

IV. Divestitures 

A. Defendant Clear Channel is 

ordered and directed to divest the 

Divestiture Assets in a manner 

consistent with this Final Judgment to 

an Acquirer or Acquirers acceptable to 

the United States in its sole discretion, 

within ninety (90) calendar days from 

the date of the closing of the transaction 

that is the subject of the Final Judgment 

or five (5) calendar days after notice of 

the entry of this Final Judgment by the 

Court, whichever is later. The United 

States, in its sole discretion, may agree 

to one or more extensions of this time 

period not to exceed in total sixty (60) 

calendar days, and shall notify the Court 

in each such circumstance. If, within 

the period permitted for divestitures, 

defendants have filed applications with 

the FCC seeking approval to assign or 

transfer licenses to the Acquirer(s) 

(previously approved by the United 

States, pursuant to the terms of this 

paragraph) of the Clear Channel Assets 

and the Clear Channel Spanish-language 

Assets, but an order or other dispositive 

action by the FCC on such applications 

has not been issued before the end of 


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the period permitted for divestitures, 

the period shall be extended with 

respect to divestiture of those Clear 

Channel Assets and Clear Channel 

Spanish-language Assets for which FCC 

final approval has not been issued until 

ten (10) calendar days after such 

approval is received. Defendant Clear 

Channel agrees to use its best efforts to 

divest the Divestiture Assets, and to 

obtain all regulatory approvals 

necessary for such divestitures, as 

expeditiously as possible. 

B. The Divestiture Assets shall not 

include the Clear Channel Assets if, 

prior to the completion of the 

divestitures required by this Final 

Judgment, both THL and Bain no longer 

have any have limited liability company 

membership or any type of debt, equity 

governance, or other beneficial interest 

in either Cumulus Media Partners or 

CMP Susquehanna, and have provided 

written certification (and supporting 

documentation) satisfactory to the 

United States that they have divested all 

such assets. 

C. The Divestiture Assets shall not 

include the Clear Channel Spanishlanguage Assets if, prior to the 

completion of the divestitures required 

by this Final Judgment, defendant THL 

no longer has any shares of capital stock 

or any type of debt, equity, governance, 

or other beneficial interest in either 

BMP-Univision Holdings or Univision, 

and has provided written certification 

(and supporting documentation) 

satisfactory to the United States that it 

has divested all such assets. 

D. The obligation to divest the San 

Francisco Spanish-language Assets shall 

be suspended if, prior to the completion 

of the divestitures required by this Final 

Judgment, those assets have been 

transferred to an FCC-authorized trust, 

and shall cease if such assets are sold 

under the terms of the FCC-authorized 

trust. 

E. In accomplishing the divestitures 

ordered by this Final Judgment, 

defendant Clear Channel promptly shall 

make known, by usual and customary 

means, the availability of the Divestiture 

Assets. Defendants shall inform any 

person making inquiry regarding a 

possible purchase of the Divestiture 

Assets that they are being divested 

pursuant to this Final Judgment and 

provide that person with a copy of this 

Final Judgment. Defendant Clear 

Channel shall offer to furnish to all 

prospective Acquirers, subject to 

customary confidentiality assurances, 

all information and documents relating 

to the Divestiture Assets customarily 

provided in a due diligence process 

except such information or documents 

subject to the attorney-client privilege or 

work-product doctrine. Defendant Clear 

Channel shall make available such 

information to the United States at the 

same time that such information is 

made available to any other person. 

F. Defendant Clear Channel shall 

provide to the Acquirer or Acquirers 

and the United States information 

relating to personnel involved in the 

operation of the Divestiture Assets to 

enable the Acquirer or Acquirers to 

make offers of employment. Defendants 

shall not interfere with any negotiations 

by the Acquirer or Acquirers to employ 

any Clear Channel employee whose 

primary responsibility is the operation 

of the Divestiture Assets. 

G. Defendant Clear Channel shall 

permit prospective Acquirers of the 

Divestiture Assets to have reasonable 

access to personnel and to make 

inspections of the physical facilities of 

the Divestiture Assets; access to any and 

all environmental, zoning, and other 

permit documents and information; and 

access to any and all financial, 

operational, or other documents and 

information customarily provided as 

part of a due diligence process. 

H. Defendant Clear Channel shall 

warrant to the Acquirer or Acquirers 

that each of the assets will be 

operational on the date of sale. 

I. Defendants shall not take any action 

that will impede in any way the 

permitting, operation, or divestiture of 

the Divestiture Assets. 

J. Defendant Clear Channel shall 

warrant to the Acquirer or Acquirers 

that there are no material defects in the 

environmental, zoning, or other permits 

pertaining to the operation of the 

Divestiture Assets, and that following 

the sale of the Divestiture Assets, 

defendants will not undertake, directly 

or indirectly, any challenges to the 

environmental, zoning, or other permits 

relating to the operation of the 

Divestiture Assets. 

K. Unless the United States otherwise 

consents in writing, any divestiture 

pursuant to Section IV, or by trustee 

appointed pursuant to Section V, of this 

Final Judgment, shall include the entire 

Divestiture Assets, and shall be 

accomplished in such a way as to satisfy 

the United States, in its sole discretion 

that (i) the Clear Channel Assets can and 

will be used by the Acquirer or 

Acquirers as part of viable, ongoing 

businesses engaged in ongoing 

commercial radio broadcasting; (ii) the 

Clear Channel Spanish-language Assets 

can and will be used by the Acquirer or 

Acquirers as part of viable, ongoing 

businesses engaged in ongoing 

commercial Spanish language radio 

broadcasting; (iii) that the Divestiture 

Assets will remain viable; and (iv) that 

the divestiture of such assets will 

remedy the competitive harm alleged in 

the Complaint. The sale of the 

Divestiture Assets may be made to one 

or more Acquirers, provided that in 

each instance it is demonstrated to the 

sole satisfaction of the United States 

that the Divestiture Assets will remain 

viable. The divestitures, whether 

pursuant to Section IV or Section V of 

this Final Judgment: 

1. Shall be made to an Acquirer or 

Acquirers that, in the United States’ sole 

judgment, has the intent and capability 

(including the necessary managerial, 

operational, technical, and financial 

capability) to compete effectively in 

either the commercial radio 

broadcasting business (for the 

Cincinnati Assets and the Houston 

Assets) or the commercial Spanishlanguage radio broadcasting business 

(for the Houston Spanish-language 

Assets, the Las Vegas Spanish-language 

Assets, and the San Francisco Spanishlanguage Assets); and 

2. shall be accomplished so as to 

satisfy the United States, in its sole 

discretion, that none of the terms of any 

agreement between an Acquirer or 

Acquirers and defendant Clear Channel 

gives defendant the ability to 

unreasonably raise the Acquirer’s costs, 

to lower the Acquirer’s efficiency, or 

otherwise to interfere in the ability of 

the Acquirer to compete effectively. 

v. Appointment of Trustee 

A. If defendant Clear Channel has not 

divested the Divestiture Assets within 

the time period specified in Paragraph 

IV (A), defendants shall notify the 

United States of that fact in writing. 

Upon application of the United States, 

the Court shall appoint a trustee 

selected by the United States and 

approved by the Court to effect the 

divestiture of the Divestiture Assets. 

B. After the appointment of a trustee 

becomes effective, only the trustee shall 

have the right to sell the Divestiture 

Assets. The trustee shall have the power 

and authority to accomplish the 

divestiture to an Acquirer acceptable to 

the United States at such price and on 

such terms as are then obtainable upon 

reasonable effort by the trustee, subject 

to the provisions of Sections IV, V, and 

VI of this Final Judgment, and shall 

have such other powers as this Court 

deems appropriate. Subject to Paragraph 

V(D) of this Final Judgment, the trustee 

may hire at the cost and expense of 

defendants any investment bankers, 

attorneys, or other agents, who shall be 

solely accountable to the trustee, and 

are reasonably necessary in the trustee’s 

judgment to assist in the divestiture. 


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C. Defendants shall not object to a sale 

by the trustee on any ground other than 

the trustee’s malfeasance. Any such 

objection by defendants must be 

conveyed in writing to the United States 

and the trustee within ten (10) calendar 

days after the trustee has provided the 

notice required under section VI. 

D. The trustee shall serve at the cost 

and expense of the defendants, on such 

terms and conditions as the United 

States approves, and shall account for 

all monies derived from the sale of the 

assets sold by the trustee and all costs 

and expenses so incurred. After 

approval by the Court of the trustee’s 

accounting, including fees for its 

services and those of any professionals 

and agents retained by the trustee, all 

remaining money shall be paid to the 

defendants and the trust shall then be 

terminated. The compensation of the 

trustee and any professionals and agents 

retained by the trustee shall be 

reasonable in light of the value of the 

Divestiture Assets and based on a fee 

arrangement providing the trustee with 

an incentive based on the price and 

terms of the divestiture and the speed 

with which it is accomplished, but 

timeliness is paramount. 

E. Defendants shall use their best 

efforts to assist the trustee in 

accomplishing the required divestiture. 

The trustee and any consultants, 

accountants, attorneys, and other 

persons retained by the trustee shall 

have full and complete access to the 

personnel, books, records, and facilities 

of the business to be divested, and the 

defendants shall develop financial and 

other information relevant to such 

business as the trustee may reasonably 

request, subject to reasonable protection 

for trade secrets or other confidential 

research, development, or commercial 

information. Defendants shall take no 

action to interfere with or to impede the 

trustee’s accomplishment of the 

divestiture. 

F. After its appointment, the trustee 

shall file monthly reports with the 

United States and the Court setting forth 

the trustee’s efforts to accomplish the 

divestiture ordered under this Final 

Judgment. To the extent such reports 

contain information that the trustee 

deems confidential, such reports shall 

not be filed in the public docket of the 

Court. Such reports shall include the 

name, address, and telephone number of 

each person who, during the preceding 

month, made an offer to acquire, 

expressed an interest in acquiring, 

entered into negotiations to acquire, or 

was contacted or made an inquiry about 

acquiring any interest in the Divestiture 

Assets, and shall describe in detail each 

contact with any such person. The 

trustee shall maintain full records of all 

efforts made to divest the Divestiture 

Assets. 

G. If the trustee has not accomplished 

the divestitures ordered under this Final 

Judgment within six months after its 

appointment, the trustee shall promptly 

file with the Court a report setting forth: 

(1) The trustee’s efforts to accomplish 

the required divestiture; (2) the reasons, 

in the trustee’s judgment, why the 

required divestiture has not been 

accomplished; and (3) the trustee’s 

recommendations. To the extent such 

report contains information that the 

trustee deems confidential, such report 

shall not be filed in the public docket 

of the Court. The trustee shall at the 

same time furnish such report to the 

United States, which shall have the 

right to make additional 

recommendations consistent with the 

purpose of the trust. The Court 

thereafter shall enter such orders as it 

shall deem appropriate to carry out the 

purpose of the Final Judgment, which 

may, if necessary, include extending the 

trust and the term of the trustee’s 

appointment by a period requested by 

the United States. 

VI. Notice of Proposed Divestitures 

A. Within two (2) business days 

following execution of a definitive 

divestiture agreement, defendant Clear 

Channel or the trustee, whichever is 

then responsible for effecting the 

divestitures required herein, shall notify 

the United States of any proposed 

divestitures required by Section IV or V 

of this Final Judgment. If the trustee is 

responsible, it shall similarly notify 

defendants. The notice shall set forth 

the details of the proposed divestiture( 

s) and list the name, address, and 

telephone number of each person not 

previously identified who offered or 

expressed an interest in or desire to 

acquire any ownership interest in the 

Divestiture Assets, together with full 

details of the same. 

B. Within fifteen (15) calendar days of 

receipt by the United States of such 

notice, the United States may request 

from the defendants, the proposed 

Acquirer or Acquirers, any other third 

party, or the trustee, if applicable, 

additional information concerning the 

proposed divestitures, the proposed 

Acquirer or Acquirers, and any other 

potential Acquirer. Defendants and the 

trustee shall furnish any additional 

information requested within fifteen 

(15) calendar days of the receipt of the 

request, unless the parties shall 

otherwise agree. 

C. Within thirty (30) calendar days 

after receipt of the notice or within 

twenty (20) calendar days after the 

United States has been provided the 

additional information requested from 

defendants, the proposed Acquirer or 

Acquirers, any third party, and the 

trustee, whichever is later, the United 

States shall provide written notice to 

defendants and the trustee, if there is 

one, stating whether or not it objects to 

the proposed divestiture(s). If the 

United States provides written notice 

that it does not object, the divestitures 

may be consummated, subject only to 

defendants’ limited right to object to the 

sale under Paragraph V(C) of this Final 

Judgment. Absent written notice that the 

United States does not object to the 

proposed Acquirer or upon objection by 

the United States, a divestiture 

proposed under Section IV or Section V 

shall not be consummated. Upon 

objection by defendant Clear Channel 

under Paragraph V(C), a divestiture 

proposed under Section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

Defendants shall not finance all or 

any part of any purchase made pursuant 

to Section IV or V of this Final 

Judgment. 

VIII. Preservation of Assets/Hold 

Separate 

Until the divestitures required by this 

Final Judgment have been 

accomplished, defendants shall take all 

steps necessary to comply with the Hold 

Separate Stipulation and Order entered 

by this Court. Defendants shall take no 

action that would jeopardize the 

divestitures ordered by this Court. 

IX. Affidavits 

A. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, and every thirty (30) calendar 

days thereafter until the divestitures 

have been completed under section IV 

or V, defendants shall deliver to the 

United States an affidavit as to the fact 

and manner of their compliance with 

section IV or V of this Final Judgment. 

Each such affidavit shall include the 

name, address, and telephone number of 

each person who, during the preceding 

thirty (30) calendar days, made an offer 

to acquire, expressed an interest in 

acquiring, entered into negotiations to 

acquire, or was contacted or made an 

inquiry about acquiring, any interest in 

the Divestiture Assets, and shall 

describe in detail each contact with any 

such person during that period. Each 

such affidavit shall also include a 

description of the efforts defendants 

have taken to solicit buyers for the 

Divestiture Assets, and to provide 

required information to any prospective 


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Acquirer, including the limitations, if 

any, on such information. Assuming the 

information set forth in the affidavit is 

true and complete, any objection by the 

United States to information provided 

by defendants, including limitations on 

the information, shall be made within 

fourteen (14) calendar days of receipt of 

such affidavit. 

B. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, defendants shall deliver to the 

United States an affidavit that describes 

in reasonable detail all actions 

defendants have taken and all steps 

defendants have implemented on an 

ongoing basis to comply with Section 

VIII of this Final Judgment. Defendants 

shall deliver to the United States an 

affidavit describing any changes to the 

efforts and actions outlined in 

defendants’ earlier affidavits filed 

pursuant to this section within fifteen 

(15) calendar days after the change is 

implemented. 

C. Defendants shall keep all records of 

all efforts made to preserve and divest 

the Divestiture Assets until one year 

after such divestitures have been 

completed. 

X. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

authorized representatives of the United 

States Department of Justice, including 

consultants and other persons retained 

by the United States, shall, upon written 

request of a duly authorized 

representative of the Assistant Attorney 

General in charge of the Antitrust 

Division, and on reasonable notice to 

defendants, be permitted: 

1. Access during defendants’ office 

hours to inspect and copy, or at the 

option of the United States, to require 

defendants to provide hard or electronic 

copies of, all books, ledgers, accounts, 

records, data, and documents in the 

possession, custody, or control of 

defendants, relating to any matters 

contained in this Final Judgment; and 

2. to interview, either informally or on 

the record, defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by any 

defendant. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, defendants shall 

submit written reports or responses to 

written interrogatories, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained by the means provided in this 

section shall be divulged by the United 

States to any person other than an 

authorized representative of the 

executive branch of the United States, 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), or 

for the purpose of securing compliance 

with this Final Judgment, or as 

otherwise required by law. 

D. If, at the time information or 

documents are furnished by defendants 

to the United States, defendants 

represent and identify in writing the 

material in any such information or 

documents to which a claim of 

protection may be asserted under Rule 

26( c)(7) of the Federal Rules of Civil 

Procedure, and defendants mark each 

pertinent page of such material, 

‘‘Subject to claim of protection under 

Rule 26(c)(7) of the Federal Rules of 

Civil Procedure,’’ then the United States 

shall give defendants ten (10) calendar 

days notice prior to divulging such 

material in any legal proceeding (other 

than a grand jury proceeding). 

XI. No Reacquisition 

A. As long as defendant Bain has any 

limited liability company membership 

or debt, equity, governance, or other 

beneficial interest in Clear Channel and 

either Cumulus Media Partners or CMP 

Susquehanna, defendants Bain and 

Clear Channel may not reacquire any 

part of the Clear Channel Divestiture 

Assets nor enter into any local 

marketing agreement, joint sales 

agreement, or any other cooperative 

selling arrangement with respect to the 

Clear Channel Divestiture Assets. 

B. As long as defendant THL has any 

limited liability company membership 

or debt, equity, governance, or other 

beneficial interest in Clear Channel and 

either Cumulus Media Partners or CMP 

Susquehanna, defendants THL and 

Clear Channel may not reacquire any 

part of the Clear Channel Divestiture 

Assets nor enter into any local 

marketing agreement, joint sales 

agreement, or any other cooperative 

selling arrangement with respect to the 

Clear Channel Divestiture Assets. 

C. As long as defendant THL has any 

limited liability company membership 

or debt, equity, governance, or other 

beneficial interest in Clear Channel and 

either Univision or BMP-Univision 

Holdings, defendants THL and Clear 

Channel may not reacquire any part of 

the Clear Channel Spanish-language 

Divestiture Assets nor enter into any 

local marketing agreement, joint sales 

agreement, or any other cooperative 

selling arrangement with respect to the 

Clear Channel Spanish-language 

Divestiture Assets. 

D. If defendants Bain and THL 

satisfied the requirements of Paragraph 

IV (B) of this Final Judgment and thus 

did not divest the Clear Channel Assets, 

no defendant may, so long as Bain or 

THL has any limited liability company 

membership or debt, equity, 

governance, or other beneficial interest 

in Clear Channel, acquire any beneficial 

interest in either Cumulus Media 

Partners or CMP Susquehanna nor enter 

into any local marketing agreement, 

joint sales agreement, or any other 

cooperative selling arrangement 

between Clear Channel and Cumulus 

Media Partners or CMP Susquehanna 

with respect to radio stations in 

Cincinnati or Houston. 

E. If defendant THL satisfied the 

requirements of Paragraph IV(C) of this 

Final Judgment and thus did not divest 

the Clear Channel Spanish-language 

Assets, neither THL nor Clear Channel 

may, so long as THL has any limited 

liability company membership or debt, 

equity, governance, or other beneficial 

interest in Clear Channel, acquire any 

beneficial interest in either BMPUnivision Holdings or Univision nor 

enter into any local marketing 

agreement, joint sales agreement, or any 

other cooperative selling arrangement 

between Clear Channel and BMPUnivision or Univision with respect to 

radio stations in Houston, Las Vegas, or 

San Francisco. 

XII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

XIV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. Section 16, including making 

copies available to the public of this 

Final Judgment, the Competitive Impact 

Statement, and any comments thereon 


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and the United States’ responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and response to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Date: 

lllllllllllllllllll

Court approval subject to procedures of 

the Antitrust Procedures and Penalties 

Act, 15 U.S.C. Section 16: United States 

District Judge. 

In the United States District Court for 

the District of Columbia 

United States of America, Department of 

Justice, Antitrust Division, 325 7th Street, 

NW., Suite 300, Washington, DC 20530, 

Plaintiff, v. Bain Capital, LLC, 111 

Huntington Ave., Boston, MA 02199, and 

Thomas H. Lee Partners, L.P., 100 Federal St. 

35th Fl., Boston, MA 02110, and Clear 

Channel Communications, Inc., 200 E. Basse 

Rd., San Antonio, TX 78209, Defendants. 

Civil Action No. 1:08–cv–00245 

Filed: Feb. 13, 2008 

Assigned to: Robertson, James 

Assign Date: 2/13/2008 

Description: Antitrust 

Competitive Impact Statement 

Plaintiff United States of America 

(‘‘United States’’), pursuant to section 

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney 

Act’’), 15 U.S.C. 16(b)–(h), files this 

Competitive Impact Statement relating 

to the proposed Final Judgment 

submitted for entry in this civil antitrust 

proceeding. 

Nature and Purpose of the Proceeding 

Defendants entered into an Agreement 

and Plan of Merger dated November 16, 

2006, pursuant to which a private equity 

group of investors led by Bain Capital, 

LLC (‘‘Bain’’) and Thomas H. Lee 

Partners, L.P. (‘‘THL’’) will acquire a 70 

percent interest in Clear Channel 

Communications Inc. (‘‘Clear Channel’’), 

the largest operator of radio stations in 

the United States. 

Plaintiff filed a civil antitrust 

Complaint on February 13, 2008 seeking 

to enjoin the proposed acquisition of a 

controlling interest in Clear Channel by 

Bain and THL. The Complaint alleges 

that, because Bain and THL hold 

sizeable interests in two radio operators 

that compete with Clear Channel—

Cumulus Media Partners LLC (‘‘CMP’’) 

and Univision Communications, Inc. 

(‘‘Univision’’)—the proposed 

acquisition would substantially lessen 

competition in the provision of radio 

advertising and Spanish-language radio 

advertising in several relevant 

geographic markets, in violation of 

section 7 of the Clayton Act, 15 U.S.C. 

section 18. This loss of competition 

likely would result in the lessening or 

elimination of competition in the sale 

and provision of advertising on radio 

stations in the relevant markets, and 

increased prices and reduced services 

associated with advertising on radio 

stations in those relevant markets. 

At the same time the Complaint was 

filed, plaintiff also filed a Hold Separate 

Stipulation and Order and a proposed 

Final Judgment, which, as explained 

more fully below, are designed to 

eliminate the anticompetitive effects of 

the acquisition. Under the proposed 

Final Judgment, defendants are required 

to divest radio stations in Cincinnati, 

Ohio; Houston/Galveston, Texas 

(‘‘Houston’’); Las Vegas, Nevada; and 

San Francisco, California (collectively, 

the ‘‘Divestiture Assets’’). Under the 

Hold Separate Stipulation and Order, 

defendants will take certain steps to 

ensure that the Divestiture Assets will 

remain independent of and 

uninfluenced by defendants during the 

pendency of the ordered divestiture, 

and that competition is maintained 

during the pendency of the ordered 

divestiture. 

Plaintiff and defendants have 

stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment would 

terminate this action, except that the 

Court would retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment and to punish violations 

thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violations 

A. Defendants, Other Relevant Entities, 

and the Proposed Transaction 

Defendant Bain is a Delaware limited 

liability company headquartered in 

Boston, Massachusetts. Bain is one of 

the world’s leading private investment 

firms with over $40 billion in assets 

under management. Defendant THL is a 

Delaware limited partnership 

headquartered in Boston, Massachusetts 

and also is one of the world’s leading 

private investment firms. THL currently 

manages approximately $12 billion of 

committed capital. Bain and THL raise 

pools of capital from private investors, 

controlling and managing that capital 

through private equity funds and coinvestment vehicles that invest in 

discrete opportunities, such as venture 

capital, public equity, and leveraged 

debt assets. Bain and THL, either 

directly or indirectly through 

management teams they install, 

typically manage and operate the assets 

in which they invest. 

Defendant Clear Channel is a 

diversified media company 

incorporated in Texas and 

headquartered in San Antonio, Texas. 

Clear Channel owns various media 

outlets including radio stations, 

domestic and international outdoor 

advertising assets, television stations, 

and a media representation firm. Radio 

broadcasting is Clear Channel’s largest 

business segment, representing over 50 

percent of Clear Channel’s total revenue. 

As of February 5, 2008, Clear Channel 

owned 833 radio stations in the United 

States, 508 of which were located 

within the top 100 markets as ranked by 

Arbitron, an international media 

marketing and research firm, including 

stations in Cincinnati, Houston, Las 

Vegas, and San Francisco. 

Bain and THL are owners, along with 

the Blackstone Group, Cumulus 

Broadcasting, Inc., and their affiliates, of 

CMP, a limited liability company 

formed in 2005. Bain and THL each 

control 25 percent of the voting interests 

of CMP and designate two members to 

its eight member Board of Directors. 

Together, Bain and THL control 50 

percent of the voting interests of CMP 

and designate one-half of the members 

of its Board of Directors. As of February 

5, 2008, CMP owned 34 radio stations 

in various markets, including stations 

that compete head-to-head with Clear 

Channel stations in Cincinnati and 

Houston. 

THL is an owner, along with Haim 

Saban, TPG Capital, Providence Equity, 

Madison Dearborn, and their affiliates, 

of Univision, the largest broadcaster of 

Spanish-language television 

programming in the United States. 

Univision is headquartered in New York 

City. THL, through affiliated funds and 

co-investment vehicles, currently holds 

a 20 percent equity interest and a 14 

percent voting interest in Univision and 

designates three members to Univision’s 

17 member Board of Directors. 

Univision owns 70 radio stations that 

broadcast in Spanish language in several 

markets, including Houston, Las Vegas, 

and San Francisco, where Univision 

radio stations compete head-to-head 

with Clear Channel’s Spanish-language 

radio stations. 

Bain and THL are planning to acquire, 

each through various affiliated funds, 

substantial ownership interests in Clear 

Channel (the ‘‘transaction’’). The 

anticipated value of the transaction is 

$28 billion. Under the purchase 

arrangement, Bain and THL each will 

acquire at least a 35 percent voting and 

economic interest in Clear Channel, 

with the remaining interest of up to 30 


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percent staying in the hands of those 

current Clear Channel investors and 

option-holders who elect to retain an 

equity interest in Clear Channel rather 

than to receive cash for their shares and/ 

or stock options. Bain and THL each 

also will acquire the right to designate 

four directors of the 12 member Clear 

Channel Board of Directors. If the 

transaction is consummated, Bain and 

THL together will control at least 70 

percent of the voting interests of Clear 

Channel and designate two-thirds of the 

members of the Board of Directors. This 

acquisition is the subject of the 

Complaint and proposed Final 

Judgment filed by plaintiff. 

III. The Competitive Effects of the 

Acquisition 

Given their existing ownership 

interests in CMP and Univision, the 

effect of Bain’s and THL’s acquisition of 

substantial partial ownership interests 

in Clear Channel may be to substantially 

lessen competition in markets in which 

stations owned by CMP or Univision—

Houston, Cincinnati, Las Vegas, and San 

Francisco—compete head-to-head with 

Clear Channel stations. 

A. Relevant Product Markets 

1. Radio Advertising is a Relevant 

Product Market 

Radio stations employ various formats 

for their programming, such as Adult 

Contemporary, Sports, or Rock. A 

station’s format can be important in 

determining the size and characteristics 

of its listening audience. Companies 

that operate radio stations, such as Clear 

Channel, CMP, and Univision, sell 

advertising time to local and national 

advertisers in each geographic market 

where they operate those stations. 

Advertising rates charged by a radio 

station are based primarily on the 

station’s ability to attract listening 

audiences having certain demographic 

characteristics in the market area that 

advertisers want to reach, as well as on 

the number of stations and the relative 

demand for radio in the market. 

Many local and national advertisers 

purchase radio advertising time because 

they consider it preferable to advertising 

in other media to meet their specific 

needs. They may consider radio 

advertising time to be more costeffective than other media to reach their 

target audiences. They may also 

consider radio advertising to be more 

efficient than other media to reach their 

target audiences. Additionally, radio 

stations render certain services or 

promotional opportunities to advertisers 

that the advertisers cannot exploit as 

effectively using other media. For these 

reasons, many local and national 

advertisers that purchase radio 

advertising time view radio as a 

necessary advertising medium, 

sometimes as a complement to other 

media. A substantial number of 

advertisers with strong radio 

preferences would not turn to other 

media if faced with a small but 

significant increase in the price of 

advertising time on radio stations. 

Radio stations generally can identify 

advertisers with strong radio 

preferences. Radio stations also 

negotiate prices individually with 

advertisers. Consequently, radio stations 

can charge different advertisers different 

prices. Because of this ability to price 

discriminate among customers, radio 

stations may charge higher prices to the 

substantial number of advertisers that 

view radio as particularly effective for 

their needs, while maintaining lower 

prices for other advertisers. 

In the event of a price increase in 

radio advertising time, some local and 

national advertisers may switch some of 

their advertising to other media rather 

than absorb a price increase in radio 

advertising time. However, the existence 

of such advertisers would not prevent 

radio stations from profitably raising 

their prices by a small but significant 

amount for the substantial number of 

advertisers that would not switch. 

Accordingly, the Complaint alleges 

that the provision of advertising time on 

radio stations is a line of commerce and 

a relevant product market within the 

meaning of section 7 of the Clayton Act. 

2. Spanish-language Radio 

Advertising is a Relevant Product 

Market 

In markets with a large Hispanic 

population, many local and national 

advertisers also consider Spanishlanguage radio to be particularly 

effective or necessary to reach their 

desired customers, especially 

consumers who listen predominantly or 

exclusively to Spanish-language radio. 

A substantial number of these 

advertisers consider Spanish-language 

radio, either alone or as a complement 

to other media, to be the most effective 

way to reach their target audience, and 

do not consider other media, including 

non-Spanish-language radio, to be a 

reasonable substitute. These advertisers 

would not turn to other media, 

including radio that is broadcast in a 

language other than Spanish, if faced 

with a small but significant increase in 

the price of advertising time on 

Spanish-language radio. 

Accordingly, the Complaint alleges 

that the provision of advertising time on 

Spanish-language radio stations to these 

advertisers is a line of commerce and a 

relevant product market within the 

meaning of section 7 of the Clayton Act. 

B. Relevant Geographic Markets 

Local and national advertisers buy 

radio advertising time on stations 

within areas defined by an Arbitron 

Metro Survey Area (‘‘MSA’’). An MSA 

is the geographic unit that is widely 

accepted by radio stations, advertisers, 

and advertising agencies as the standard 

geographic market to use in evaluating 

radio audience size and composition. 

Local and national advertising that is 

placed on radio stations in an MSA is 

aimed at reaching listening audiences in 

that MSA. Radio stations in other MSAs 

do not provide effective access to these 

audiences. If there were a small but 

significant price increase within an 

MSA, an insufficient number of 

advertisers would switch their 

advertising time purchases to radio 

stations outside the MSA to make the 

price increase unprofitable. 

In the Houston and Cincinnati MSAs, 

Clear Channel and CMP stations 

compete against each other and against 

other stations in the provision of radio 

advertising time to advertisers, 

regardless of the language broadcast 

over the station. If there were a small 

but significant increase in radio 

advertising prices within the Houston 

MSA or the Cincinnati MSA, an 

insufficient number of advertisers 

seeking to reach listeners in the Houston 

MSA or the Cincinnati MSA would 

switch their advertising time purchases 

to radio stations outside that MSA to 

make the price increase unprofitable. 

Accordingly, the Complaint alleges that 

the Houston and Cincinnati MSAs (the 

‘‘Overlap Markets’’) are each relevant 

geographic markets within the meaning 

of section 7 of the Clayton Act. 

In the Houston MSA, Las Vegas MSA, 

and San Francisco MSA, Clear Channel 

and Univision compete against each 

other in the provision of Spanishlanguage radio advertising time to 

advertisers. If there were a small but 

significant increase in Spanish-language 

radio advertising prices in the Houston 

MSA, Las Vegas MSA, or San Francisco 

MSA, an insufficient number of 

advertisers seeking to reach listeners in 

any of those MSAs would switch their 

Spanish-language advertising purchases 

to radio stations outside that MSA to 

make the price increase unprofitable. 

Accordingly, the Complaint alleges that 

the Houston, Las Vegas, and San 

Francisco MSAs (the ‘‘Spanish-language 

Overlap Markets’’) are each relevant 

geographic markets within the meaning 

of Section 7 of the Clayton Act. 


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C. Competition in the Relevant Markets 

1. Competition in Radio Advertising 

in Houston and Cincinnati. 

Advertisers that use radio to reach 

their target audience select radio 

stations on which to advertise based 

upon a number of factors including, 

among others, the size and 

characteristics of the station’s audience. 

Many advertisers seek to reach a large 

percentage of their target audience by 

selecting those stations with a listening 

audience that is highly correlated to the 

advertisers’ target audience. 

Clear Channel and CMP vigorously 

compete for listeners and closely 

monitor each other’s competitive 

position in the Cincinnati MSA and the 

Houston MSA. Their stations are 

similarly formatted and programmed 

with an eye toward attracting listeners 

from each other. 

Clear Channel and CMP stations in 

Houston and Cincinnati also currently 

compete vigorously for radio advertisers 

that seek to reach the specific 

demographic groups listening to their 

stations. For many local and national 

advertisers buying radio advertising 

time in the Houston MSA and the 

Cincinnati MSA, Clear Channel and 

CMP stations are each other’s next best 

substitutes. During individualized rate 

negotiations, the substantial number of 

advertisers that desire to reach these 

listeners can benefit from this 

competition by ‘‘playing off’’ Clear 

Channel and CMP stations against each 

other to reach better terms. 

Radio station ownership in Houston 

and Cincinnati is highly concentrated, 

with Clear Channel and CMP’s 

combined advertising revenue share 

exceeding 37 percent in Houston and 65 

percent in Cincinnati. Additionally, 

Clear Channel and CMP’s combined 

listener share exceeds 34 percent in 

Houston and 59 percent in Cincinnati. 

2. Competition in Spanish-language 

Radio Advertising in Houston, Las 

Vegas, and San Francisco 

Clear Channel and Univision 

currently are vigorous competitors and 

closely monitor each other’s competitive 

position for Spanish-language listeners 

in the Houston, Las Vegas, and San 

Francisco MSAs, each of which has a 

large Hispanic population. Their 

stations in these markets are similarly 

formatted and programmed with an eye 

toward attracting Spanish-language 

listeners from each other. 

Clear Channel and Univision stations 

also currently compete vigorously for 

radio advertisers that seek to reach 

Spanish-language listeners. For many 

local and national advertisers, buying 

Spanish-language radio advertising time 

in the Houston, Las Vegas, and San 

Francisco Spanish-language Overlap 

Markets, Clear Channel and Univision 

stations are each other’s next best 

substitutes. During individualized rate 

negotiations, the substantial number of 

advertisers that desire to reach these 

listeners can benefit from this 

competition by ‘‘playing off’ Clear 

Channel and Univision stations against 

each other to reach better terms. 

Spanish-language radio station 

ownership in Houston, Las Vegas, and 

San Francisco is highly concentrated. 

Clear Channel and Univision’s 

combined Spanish-language listener 

share exceeds 75 percent in Houston, 73 

percent in Las Vegas, and 70 percent in 

San Francisco. Additionally, Clear 

Channel and Univision’s combined 

Spanish-language advertising revenue 

share exceeds 79 percent in Houston, 78 

percent in Las Vegas, and 63 percent in 

San Francisco. 

D. Anticompetitive Effects of the 

Transaction in Houston and Cincinnati 

Radio Advertising Markets 

Clear Channel is one of only a few 

radio companies competing with CMP 

in the sale of radio advertising in 

Houston and Cincinnati, and within 

those markets, the two companies are 

each other’s next best substitutes for 

advertisers seeking to reach several key 

demographic groups. Bain and THL 

currently control CMP; together they 

hold 50 percent of the voting and equity 

interests and have the right to choose 

half of the members of its Board of 

Directors. CMP’s Board of Directors 

cannot make decisions without the 

agreement of either Bain or THL, which 

have access to CMP’s non-public, 

competitively sensitive information and 

its officers and employees. These 

ownership interests and associated 

rights give each of Bain and THL, as 

well as Bain and THL acting together, 

influence over, if not outright control of, 

CMP’s management decisions. 

Upon consummation of their 

proposed acquisition of interests in 

Clear Channel, defendants Bain and 

THL together would also control Clear 

Channel. Together, they would own at 

least 70 percent of the equity and voting 

interests of Clear Channel and have the 

right to select eight of Clear Channel’s 

12 directors. In addition, Bain and THL 

would have access to Clear Channel’s 

non-public, competitively sensitive 

information and its officers and 

employees. After the acquisition, each 

of Bain and THL, as well as Bain and 

THL acting together, would have 

influence over, if not outright control of, 

Clear Channel’s management decisions. 

Bain and THL, either directly or 

indirectly through management teams 

they install, typically manage and 

operate the assets in which they invest. 

As significant equity holders in both 

Clear Channel and CMP, Bain and THL 

each would seek to maximize the value 

of their investments by increasing the 

profitability of those companies. With 

respect to their interests in CMP and 

Clear Channel, Bain and THL’s interests 

would be aligned and they would be 

expected to work together to achieve 

maximum profits at the two companies, 

including by using their control, 

influence, and access to information to 

reduce competition between Clear 

Channel and CMP in order to increase 

the companies’ total profits. 

Bain or THL, or Bain and THL acting 

together, would have the incentive and 

ability to use their ownership, control 

and influence, and access to information 

as to both Clear Channel and CMP to 

reduce competition between the 

companies in markets where they are 

significant competitors. They could 

accomplish such a reduction in 

competition in at least four ways: 

(1) Through their control of or 

influence over both Clear Channel and 

CMP, Bain or THL, or Bain and THL 

working together, could cause Clear 

Channel and CMP to coordinate their 

competitive behavior in a manner that 

increased both companies’ profits but 

harmed consumers; 

(2) Through their governance rights 

relating to both Clear Channel and CMP, 

Bain or THL, or Bain and THL working 

together, could install a management 

team at one of the companies motivated 

to act in the interest of Bain and THL, 

and thereby reduce the vigor of its 

competition against the other company 

in which Bain and THL had a 

significant stake; 

(3) Through their access to nonpublic, competitively sensitive 

information of both Clear Channel and 

CMP, and through their contacts with 

management at both Clear Channel and 

CMP, Bain or THL, or Bain and THL 

working together, could facilitate 

coordination between Clear Channel 

and CMP; and 

(4) Through their control of or 

influence over both Clear Channel and 

CMP, Bain or THL, or Bain and THL 

working together, could cause either 

Clear Channel or CMP to forbear from 

competing against the other, knowing 

that a significant portion of lost sales 

would be recaptured by a company in 

which Bain and THL had a significant 

ownership interest. 

For example, Clear Channel’s 

management team, acting pursuant to 

either Bain’s or THL’s corporate 


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influence, or pursuant to their joint 

voting control, could be expected to 

increase the price of advertising at Clear 

Channel to those advertisers that view 

CMP as Clear Channel’s closest 

alternative, knowing that Bain and THL 

would reap the benefits of the price 

increase at Clear Channel and recapture 

the lost profits from any advertisers that 

chose to switch to CMP. Alternatively, 

the transaction would result in higher 

prices for purchasers of radio 

advertising if management teams at 

Clear Channel and CMP, acting 

pursuant to either Bain’s or THL’s 

influence or their joint voting control, 

were to go along with price increases at 

the other’s stations, which would be 

known to Bain and THL even if not 

publicly disclosed. Given that Houston 

and Cincinnati are highly concentrated 

markets, advertisers would find it 

difficult or impossible to ‘‘buy around’’

Clear Channel and CMP, i.e., to 

effectively reach their targeted audience 

without using Clear Channel or CMP 

radio stations. 

Thus, the Complaint alleges that 

Bain’s and THL’s proposed acquisitions 

of ownership interests in Clear Channel, 

if consummated, would substantially 

reduce competition for radio advertising 

in the Houston and Cincinnati Overlap 

Markets. 

E. Anticompetitive Effects of the 

Acquisition in Houston, Las Vegas, and 

San Francisco Spanish-Language Radio 

Markets 

Clear Channel is one of only a few 

radio companies competing with 

Univision for Spanish-language radio 

advertising time in Houston, Las Vegas, 

and San Francisco, and within those 

markets, the two companies are each 

other’s next best substitutes for 

advertisers targeting Spanish-language 

listeners. THL currently has a 20 

percent equity interest and a 14 percent 

voting interest in Univision, as well as 

the right to designate three Univision 

board members. THL also has access to 

Univision’s non-public, competitively 

sensitive information and its officers 

and employees. Significant corporate 

decisions at Univision require the assent 

of three of its five owners. THL’s 

ownership interest and associated rights 

give it influence over Univision’s 

management decisions. 

Upon consummation of the proposed 

acquisition of Clear Channel, defendant 

THL would own at least 35 percent of 

the equity and voting interest of Clear 

Channel, as well as a right to choose 

four of its 12 directors. In addition, after 

the acquisition, THL would have access 

to Clear Channel’s non-public, 

competitively sensitive information and 

its officers and employees. THL’s 

ownership interest and associated rights 

would give it influence over Clear 

Channel’s management decisions. 

As a significant equity holder in both 

Clear Channel and Univision, THL 

would seek to maximize the value of its 

investments by increasing the 

profitability of those companies. THL 

likely would work to achieve maximum 

profits at the two companies, including 

by using its influence and access to 

information to reduce competition 

between Clear Channel and Univision, 

in order to increase THL’s total profits. 

THL would have the incentive and 

ability to use its ownership, control and 

influence, and access to information as 

to both Clear Channel and Univision to 

reduce competition between the 

companies in markets where they are 

significant competitors. THL could 

accomplish such a reduction in 

competition in at least four ways: 

(1) Through its influence over both 

Clear Channel and Univision, THL 

could cause Clear Channel and 

Univision to coordinate their 

competitive behavior in a manner that 

increased both companies’ profits but 

harmed consumers; 

(2) Through its governance rights 

relating to both Clear Channel and 

Univision, THL could work to install a 

management team at one of the 

companies motivated to act in THL’s 

interests, or influence a management 

team to account for THL’s interests, and 

thereby reduce the vigor of its 

competition against the other company 

in which THL had a significant stake; 

(3) Through its access to non-public, 

competitively sensitive information of 

both Clear Channel and Univision, and 

through its contacts with management at 

both Clear Channel and Univision, THL 

could facilitate coordination between 

Clear Channel and Univision; and 

(4) Through its influence over both 

Clear Channel and Univision, THL 

could cause either Clear Channel or 

Univision to forbear from competing 

against the other, knowing that a 

significant portion of lost sales would be 

recaptured by a company in which THL 

had a significant ownership interest. 

For example, as a result of the 

acquisition, with access to both 

companies’ non-public competitively 

sensitive information, THL would have 

the ability and the incentive to facilitate 

the coordination of pricing and other 

competitive decisions between Clear 

Channel and Univision in the Spanishlanguage Overlap Markets. Given that 

those markets are highly concentrated, 

advertisers would find it difficult or 

impossible to ‘‘buy around’’ Clear 

Channel and Univision, i.e., to 

effectively reach their targeted audience 

without using Clear Channel or 

Univision radio stations, resulting in 

higher prices and lower service levels 

for purchasers of Spanish-language 

radio advertising. Thus, the Complaint 

alleges that THL’s acquisition of a 

substantial partial ownership interest in 

Clear Channel would substantially 

lessen competition in the sale of 

Spanish-language radio advertising in 

Houston, Las Vegas, and San Francisco, 

in violation of section 7 of the Clayton 

Act, as amended, 15 U.S.C. 18. 

F. Federal Communication Commission 

Obligations 

In order to meet FCC radio ownership 

rules, Bain and THL, prior to 

consummating their acquisition of 

ownerships interests in Clear Channel, 

plan to convert all of their governance 

rights and ownership interests in CMP 

into passive equity interests, which 

means they will no longer have voting 

rights and will withdraw all Bain and 

THL directors from the CMP Board. For 

the same reason, THL likewise plans to 

convert its interests in Univision to 

passive equity interests, and withdraw 

from the Univision Board. 

Such changes would not eliminate the 

potential for the competitive harm in 

the markets where Clear Channel 

competes with CMP or Univision. 

Because the FCC-required conversions 

would not reduce the magnitude of any 

defendant’s equity stake in the three 

companies, the defendants would still 

profit from any reduction in 

competition between either Clear 

Channel and CMP or between Clear 

Channel and Univision. In addition, the 

FCC-required conversions would not 

affect Bain or THL’s control of Clear 

Channel, or eliminate their access to 

non-public, confidential information 

and officers and employees at Clear 

Channel, CMP, and Univision. 

As a result, the conversions would not 

eliminate the ability of Bain and THL, 

whether acting individually or together, 

to cause a reduction in competition. For 

example, Bain and/or THL would still 

have the incentive and ability, given 

their combined 70 percent share in 

Clear Channel, to influence Clear 

Channel’s management team to increase 

the price of advertising at Clear Channel 

to those advertisers that view CMP as 

Clear Channel’s closest alternative, 

knowing that Bain and THL would reap 

the benefits of the price increase at Clear 

Channel and recapture the lost profits 

from any advertisers that chose to 

switch to CMP. Alternatively, because 

the FCC regulatory scheme does not 

require that THL relinquish its access to 

non-public, confidential information at 


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Federal Register / Vol. 73, No. 40 / Thursday, February 28, 2008 / Notices 10821 

either Clear Channel or Univision, THL 

could still have the ability to be an 

information conduit between the two 

companies so as to facilitate the 

coordination of pricing and other 

competitive decisions between them in 

the Spanish-language Overlap Markets. 

Accordingly, a decree mandating 

divestitures is necessary to restore 

competition. 

G. Entry Will Not Mitigate the Likely 

Anticompetitive Effects 

Successful entry into the Houston or 

Cincinnati Overlap Markets or the 

Houston, Las Vegas, or San Francisco 

Spanish-language Overlap Markets 

would not be timely, likely, or sufficient 

to offset the anticompetitive effects 

resulting from this transaction. 

Entry could occur by obtaining a 

license for new radio spectrum or by 

reformatting an existing station. 

However, acquisition of new radio 

spectrum is highly unlikely because 

spectrum is a scarce and expensive 

commodity. Reformatting by existing 

stations in any of the relevant 

geographic markets would not be 

sufficient to mitigate the competitive 

harm likely to result from this 

acquisition. For those stations in these 

markets that have large shares in other 

coveted demographics, a format shift 

solely in response to small but 

significant increases in price by Clear 

Channel, CMP, or Univision is not likely 

because it would not be profitable. For 

those radio stations that may have 

incentives to change formats in response 

to small but significant increases in 

price by Clear Channel, CMP, and 

Univision, their shift would not be 

sufficient to mitigate the 

anticompetitive effects resulting from 

this acquisition. 

IV. Explanation of the Proposed Final 

Judgment 

A. Clear Channel Radio Stations Must 

Be Divested 

The proposed Final Judgment will 

eliminate the anticompetitive effects 

that would result from Bain’s and THL’s 

acquisition of substantial ownership 

interests in Clear Channel. Paragraph 

IV(A) of the proposed Final Judgment 

requires defendant Clear Channel, 

within 90 days after the closing of their 

transaction, or five calendar days after 

notice of the entry of the Final Judgment 

by the Court, whichever is later, to 

divest certain of its radio stations in 

Houston, Cincinnati, Las Vegas, and San 

Francisco. In order to maximize the 

likelihood that appropriate radio 

stations are divested promptly to 

qualified buyers, the proposed Final 

Judgment provides Clear Channel with 

the flexibility to choose between two 

equivalently effective divestiture 

packages in Houston and Cincinnati. 

The Divestiture Assets comprise the 

following stations and all tangible and 

intangible assets used in their operation: 

1. the Clear Channel Assets are: 

a. a Houston station—either KHMX 

or, at the discretion of the defendants, 

KTBZ; 

b. two Cincinnati stations—either 

WLW and WKFS or, at the discretion of 

the defendants, WOFX and WNNF; 

2. the Clear Channel Spanishlanguage Assets are: 

a. KLOL, a Houston Spanish-language 

station; 

b. KWID, a Las Vegas Spanishlanguage station; and 

c. KSJO, a San Francisco Spanishlanguage station. 

These stations must be divested to 

acquirer(s) that, in the United States’

sole judgment, will use them as part of 

viable, ongoing businesses engaged in 

commercial radio broadcasting or 

Spanish-language radio broadcasting. 

The proposed Final Judgment requires 

defendants to take all reasonable steps 

necessary to accomplish the divestiture 

quickly and to cooperate with 

prospective acquirers. 

The sale of the Divestiture Assets 

according to the terms of the proposed 

Final Judgment will eliminate the anticompetitive effects of the acquisition in 

the Houston and Cincinnati Overlap 

Markets for radio advertising and in the 

Houston, Las Vegas, and San Francisco 

Spanish-language Overlap Markets for 

Spanish-language radio advertising. In 

each market, the divestitures will 

establish a new, independent, and 

economically viable competitor. 

The proposed Final Judgment relieves 

the defendants of some or all of their 

obligations to divest under three sets of 

circumstances. First, the proposed Final 

Judgment takes into account that the 

FCC has required that Clear Channel sell 

a San Francisco station in order to 

comply with FCC media ownership 

limitations. Paragraph IV(D) of the 

proposed Final Judgment thus provides 

that, if the San Francisco station has 

been transferred to an FCC-authorized 

trust prior to the completion of the 

required divestitures, defendants’

obligation to divest that station is 

suspended and will be eliminated if the 

station is sold under the terms of the 

FCC-authorized trust, in which case the 

objectives of the proposed Final 

Judgment would have been achieved. 

Second, if Bain and THL both divest 

100 percent of their interests in CMP, 

thereby eliminating the overlap between 

CMP and Clear Channel achieved by the 

transaction, Paragraph IV(B) of the 

proposed Final Judgment would no 

longer require that the defendants divest 

those stations that comprise the Clear 

Channel Assets. If these assets are not 

divested, Paragraph XI(D) of the 

proposed Final Judgment would bar the 

reacquisition by Bain or THL of any 

interest in CMP so long as they continue 

to have some interest in Clear Channel. 

Third, if THL divests 100 percent of 

its interests in Univision, thereby 

eliminating the overlap between 

Univision and Clear Channel achieved 

by the transaction, Paragraph IV(C) of 

the proposed Final Judgment would no 

longer require that the defendants divest 

those stations that comprise the Clear 

Channel Spanish-language Assets. If 

these assets are not divested, however, 

Paragraph XI(E) of the proposed Final 

Judgment would bar the reacquisition of 

by THL of any interest in Univision so 

long as it continues to have some 

interest in Clear Channel. 

B. Timing of Divestitures 

In antitrust cases involving mergers or 

joint ventures in which the United 

States seeks a divestiture remedy, it 

requires completion of the divestiture 

within the shortest time period 

reasonable under the circumstances. As 

noted above, the proposed Final 

Judgment requires defendant Clear 

Channel to complete the divestitures 

within 90 days after the transaction 

closes, or five calendar days after notice 

of the entry of the Final Judgment by the 

Court, whichever is later. The United 

States in its sole discretion may extend 

the time period for divestiture by up to 

60 days. 

In this matter, Paragraph IV(A) of the 

proposed Final Judgment also provides 

for an additional extension in certain 

circumstances. This extension takes into 

account the FCC’s role in connection 

with transfers of radio stations from one 

operator to another. If the defendants 

have found a buyer or buyers for the 

assets (and the buyers have been 

approved by the United States) and have 

filed applications with the FCC seeking 

approval to assign or transfer the 

licenses within the initial period for 

divestiture, but the FCC has not yet 

issued a final order approving such 

transfers, the proposed Final Judgment 

allows for an extension of the 

divestiture period until ten days after 

the FCC’s order approving the transfer is 

issued. 

The divestiture timing provisions of 

the proposed Final Judgment will 

ensure that the divestitures are carried 

out in a timely manner, and at the same 

time will permit defendants an adequate 

opportunity to accomplish the 


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10822 Federal Register / Vol. 73, No. 40 / Thursday, February 28, 2008 / Notices 

divestitures consistent with their FCC 

obligations. Even if the Clear Channel 

stations have not been divested upon 

consummation of the transaction, there 

should be no adverse impact on 

competition given the limited duration 

of the period of common ownership and 

the detailed requirements of the Hold 

Separate Stipulation and Order. 

C. Use of a Trustee 

In the event that the defendants do 

not accomplish the divestiture within 

the periods prescribed in the proposed 

Final Judgment, the Final Judgment 

provides that the Court will appoint a 

trustee selected by plaintiff to effect the 

divestiture. 

Section V details the requirements for 

the establishment of the divestiture 

trust, the selection and compensation of 

the trustee, and the responsibilities of 

the trustee in connection with the 

divestiture. The trustee will have the 

sole responsibility, under Paragraph 

V(B), for the sale of the stations to be 

divested. The trustee has the authority 

to accomplish the divestiture at the 

earliest possible time and ‘‘at such price 

and on such terms as are then 

obtainable upon reasonable effort by the 

trustee.’’

The proposed Final Judgment 

provides that defendants will pay all 

costs and expenses of the trustee. The 

trustee’s commission will be structured, 

under Paragraph V(D) of the proposed 

Final Judgment, so as to provide an 

incentive for the trustee based on the 

price and terms obtained and the speed 

with which the divestiture is 

accomplished. After his or her 

appointment becomes effective, the 

trustee will file monthly reports with 

the Court and plaintiff setting forth his 

or her efforts to accomplish the 

divestiture. At the end of six months, if 

the divestiture has not been 

accomplished, the trustee and plaintiff 

will make recommendations to the 

Court, which shall enter such orders as 

appropriate in order to carry out the 

purpose of the Final Judgment, 

including extending the trust or term of 

the trustee’s appointment. 

D. The Hold Separate Stipulation and 

Order 

The Hold Separate Stipulation and 

Order, filed at the same time as the 

Complaint, ensures that, pending 

divestiture of the Clear Channel 

stations, (i) defendants will take no 

steps to limit those stations’ ability to 

operate as competitively independent, 

economically viable, and ongoing 

business concerns, (ii) defendants will 

not influence those stations’ business, 

and (iii) competition will be 

maintained. The Hold Separate 

Stipulation and Order requires Clear 

Channel to hold the stations to be 

divested separate as independent, 

ongoing, economically viable, and 

active competitors in their particular 

markets. This means that their 

management, including decisionmaking functions relating to marketing 

and pricing, will be kept separate and 

apart from, and not influenced by, 

defendants Bain or THL or Clear 

Channel’s other operations. 

V. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

U.S.C. 15, provides that any person who 

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorneys’ fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of section 5(a) of the Clayton 

Act, 15 U.S.C. 16(a), the proposed Final 

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against defendants. 

VI. Procedures Available for 

Modification of the Proposed Final 

Judgment 

Plaintiff and defendants have 

stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that plaintiff has 

not withdrawn its consent. The APPA 

conditions entry upon the Court’s 

determination that the proposed Final 

Judgment is in the public interest. 

The APPA provides a period of at 

least sixty (60) days preceding the 

effective date of the proposed Final 

Judgment within which any person may 

submit to plaintiff written comments 

regarding the proposed Final Judgment. 

Any person who wishes to comment 

should do so within sixty (60) days of 

the date of publication of this 

Competitive Impact Statement in the 

Federal Register or the last date of 

publication in a newspaper of the 

summary of this Competitive Impact 

Statement; whichever is later. All 

comments received during this period 

will be considered by the United States 

Department of Justice, which remains 

tree to withdraw its consent to the 

proposed Final Judgment at any time 

prior to the Court’s entry of judgment. 

The comments and the response of 

plaintiff will be filed with the Court and 

published in the Federal Register. 

Written comments should be 

submitted to: John R. Read, Chief, 

Litigation III Section, Antitrust Division, 

U.S. Department of Justice, 325 7th 

Street, NW., Suite 300, Washington, DC 

20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VII. Alternatives to the Proposed Final 

Judgment 

Plaintiff considered, as an alternative 

to the proposed Final Judgment, a full 

trial on the merits against defendants. 

Plaintiff could have continued the 

litigation and sought preliminary and 

permanent injunctions against Bain and 

THL’s acquisition of Clear Channel. 

Plaintiff is satisfied, however, that the 

divestiture of the stations described in 

the proposed Final Judgment will 

preserve competition in the provision of 

radio advertising in Houston and 

Cincinnati, and competition in the 

provision of Spanish-language radio 

advertising in Houston, Las Vegas and 

San Francisco, the relevant markets 

identified in the Complaint. Thus, the 

proposed Final Judgment would achieve 

all or substantially all of the relief the 

United States would have obtained 

through litigation, but avoids the time, 

expense, and uncertainty of a full trial 

on the merits of the Complaint. 

VIII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a sixtyday comment period, after which the 

Court shall determine whether entry of 

the proposed Final Judgment ‘‘is in the 

public interest.’’ 15 U.S.C. 16(e)(1). In 

making that determination, the court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) The competitive impact of such 

judgment, including termination of 

alleged violations, provisions for 

enforcement and modification, duration 

of relief sought, anticipated effects of 

alternative remedies actually 

considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the 

adequacy of such judgment that the 

court deems necessary to a 

determination of whether the consent 

judgment is in the public interest; and 

(B) The impact of entry of such 

judgment upon competition in the 

relevant market or markets, upon the 


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Federal Register / Vol. 73, No. 40 / Thursday, February 28, 2008 / Notices 10823 

1The 2004 amendments substituted ‘‘shall’’ for 

‘‘may’’ in directing relevant factors for court to 

consider and amended the list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms. Compare 15 

U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); 

see also SBC Commc’ns, 489 F. Supp. 2d at 11 

(concluding that the 2004 amendments ‘‘effected 

minimal changes’’ to Tunney Act review). 

2Cf. BNS, 858 F.2d at 464 (holding that the 

court’s ‘‘ultimate authority under the [APPA] is 

limited to approving or disapproving the consent 

decree’’); United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (noting that, in this way, 

the court is constrained to ‘‘look at the overall 

picture not hypercritically, nor with a microscope, 

but with an artist’s reducing glass’’). See generally 

Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the 

remedies [obtained in the decree are] so 

inconsonant with the allegations charged as to fall 

outside of the ‘reaches of the public interest’ ’’). 

3See United States v. Enova Corp., 107 F. Supp. 

2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney 

Act expressly allows the court to make its public 

interest determination on the basis of the 

competitive impact statement and response to 

comments alone’’); S. Rep. No. 93–298, 93d Cong., 

1st Sess., at 6 (1973) (‘‘Where the public interest can 

be meaningfully evaluated simply on the basis of 

briefs and oral arguments, that is the approach that 

should be utilized.’’); United States v. Mid-Am. 

Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, 

at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of 

corrupt failure of the government to discharge its 

duty, the Court, in making its public interest 

finding, should * * * carefully consider the 

explanations of the government in the competitive 

impact statement and its responses to comments in 

order to determine whether those explanations are 

reasonable under the circumstances.’’). 

public generally and individuals 

alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public 

benefit, if any, to be derived from a 

determination of the issues at trial. 

15 U.S.C. 16(e)(1)(A) & (B). In 

considering these statutory factors, the 

court’s inquiry is necessarily a limited 

one, as the government is entitled to 

‘‘broad discretion to settle with the 

defendant within the reaches of the 

public interest.’’ United States v. 

Microsoft Corp., 56 F.3d 1448, 1461 

(D.C. Cir. 1995); see generally United 

States v. SBC Commc’ns, Inc., 489 F. 

Supp. 2d 1 (D.D.C. 2007) (assessing 

public interest standard under the 

Tunney Act).1

As the United States Court of Appeals 

for the District of Columbia Circuit has 

held, under the APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations set forth in the 

government’s complaint, whether the 

decree is sufficiently clear, whether 

enforcement mechanisms are sufficient, 

and whether the decree may positively 

harm third parties. See Microsoft, 56 

F.3d at 1458–62. With respect to the 

adequacy of the relief secured by the 

decree, a court may not ‘‘engage in an 

unrestricted evaluation of what relief 

would best serve the public.’’ United 

States v. BNS, Inc., 858 F.2d 456, 462 

(9th Cir. 1988) (citing United States v. 

Bechtel Corp., 648 F.2d 660, 666 (9th 

Cir. 1981)); see also Microsoft, 56 F.3d 

at 1460–62; United States v. Alcoa, Inc., 

152 F. Supp. 2d 37, 40 (D.D.C. 2001). 

Courts have held that: 

The balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in the 

first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in consenting 

to the decree. The court is required to 

determine not whether a particular decree is 

the one that will best serve society, but 

whether the settlement is ‘‘within the reaches 

of the public interest.’’ More elaborate 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).2 In 

determining whether a proposed 

settlement is in the public interest, a 

district court ‘‘must accord deference to 

the government’s predictions about the 

efficacy of its remedies, and may not 

require that the remedies perfectly 

match the alleged violations.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 17; see 

also Microsoft, 56 F.3d at 1461 (noting 

the need for courts to be ‘‘deferential to 

the government’s predictions as to the 

effect of the proposed remedies’’); 

United States v. Archer-DanielsMidland Co., 272 F. Supp. 2d 1, 6 

(D.D.C. 2003) (noting that the court 

should grant due respect to the United 

States’ prediction as to the effect of 

proposed remedies, its perception of the 

market structure, and its views of the 

nature of the case). 

Courts have greater flexibility in 

approving proposed consent decrees 

than in crafting their own decrees 

following a finding of liability in a 

litigated matter. ‘‘[A] proposed decree 

must be approved even if it falls short 

of the remedy the court would impose 

on its own, as long as it falls within the 

range of acceptability or is ‘within the 

reaches of public interest.’ ’’ United 

States v. Am. Tel. & Tel. Co., 552 F. 

Supp. 131, 151 (D.D.C. 1982) (citations 

omitted) (quoting United States v. 

Gillette Co., 406 F. Supp. 713, 716 (D. 

Mass. 1975)), aff’d sub nom. Maryland 

v. United States, 460 U.S. 1001 (1983); 

see also United States v. Alcan 

Aluminum Ltd., 605 F. Supp. 619, 622 

(W.D. Ky. 1985) (approving the consent 

decree even though the court would 

have imposed a greater remedy). To 

meet this standard, the United States 

‘‘need only provide a factual basis for 

concluding that the settlements are 

reasonably adequate remedies for the 

alleged harms.’’ SBC Commc’ns, 489 F. 

Supp. 2d at 17. 

Moreover, the court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. Because the ‘‘court’s 

authority to review the decree depends 

entirely on the government’s exercising 

its prosecutorial discretion by bringing 

a case in the first place,’’ it follows that 

‘‘the court is only authorized to review 

the decree itself,’’ and not to ‘‘effectively 

redraft the complaint’’ to inquire into 

other matters that the United States did 

not pursue. Id. at 1459–60. As this Court 

recently confirmed in SBC 

Communications, courts ‘‘cannot look 

beyond the complaint in making the 

public interest determination unless the 

complaint is drafted so narrowly as to 

make a mockery of judicial power.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 15. 

In its 2004 amendments to the APPA, 

Congress made clear its intent to 

preserve the practical benefits of 

utilizing consent decrees in antitrust 

enforcement, adding the unambiguous 

instruction that ‘‘[n]othing in this 

section shall be construed to require the 

court to conduct an evidentiary hearing 

or to require the court to permit anyone 

to intervene.’’ 15 U.S.C. 16(e)(2). The 

language wrote into the statute what 

Congress intended when it enacted the 

Tunney Act in 1974, as Senator Tunney 

explained: ‘‘The court is nowhere 

compelled to go to trial or to engage in 

extended proceedings which might have 

the effect of vitiating the benefits of 

prompt and less costly settlement 

through the consent decree process.’’

119 Cong. Rec. 24,598 (1973) (statement 

of Senator Tunney). Rather, the 

procedure for the public interest 

determination is left to the discretion of 

the court, with the recognition that the 

court’s ‘‘scope of review remains 

sharply proscribed by precedent and the 

nature of Tunney Act proceedings.’’

SBC Commc’ns, 489 F. Supp. 2d at 11.3

IX. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by plaintiff 

United States in formulating the 

proposed Final Judgment. 

Dated: February 13, 2008 

Respectfully submitted, 

Daniel McCuaig (DC Bar No. 478199), 

Christopher Ries, 


rwilkins on PROD1PC63 with NOTICES
10824 Federal Register / Vol. 73, No. 40 / Thursday, February 28, 2008 / Notices 

Attorneys, Litigation III Section, Antitrust 

Division, U.S. Department of Justice, 325 7th 

Street, NW., Suite 300, Washington, DC 

20530, (202) 307–0520, Facsimile: (202) 514–

7308. 

[FR Doc. 08–867 Filed 2–27–08; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF LABOR 

Office of the Secretary 

Submission for OMB Review: 

Comment Request 

February 22, 2008. 

The Department of Labor (DOL) 

hereby announces the submission of the 

following public information collection 

requests (ICR) to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995 

(Pub. L. 104–13, 44 U.S.C. chapter 35). 

A copy of each ICR, with applicable 

supporting documentation; including 

among other things a description of the 

likely respondents, proposed frequency 

of response, and estimated total burden 

may be obtained from the RegInfo.gov 

Web site at http://www.reginfo.gov/ 

public/do/PRAMain or by contacting 

Darrin King on 202–693–4129 (this is 

not a toll-free number) / e-mail: 

king.darrin@dol.gov. 

Interested parties are encouraged to 

send comments to the Office of 

Information and Regulatory Affairs, 

Attn: Katherine Astrich, OMB Desk 

Officer for the Employment and 

Training Administration (ETA), Office 

of Management and Budget, Room 

10235, Washington, DC 20503, 

Telephone: 202–395–7316/Fax: 202–

395–6974 (these are not a toll-free 

numbers), e-mail: 

OIRA_submission@omb.eop.gov within 

30 days from the date of this publication 

in the Federal Register. In order to 

ensure the appropriate consideration, 

comments should reference the OMB 

Control Number (see below). 

The OMB is particularly interested in 

comments which: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Agency: Employment and Training 

Administration. 

Type of Review: Extension without 

change of a currently approved 

collection. 

Title: Interstate Arrangement for 

Combining Employment and Wages. 

OMB Control Number: 1205–0029. 

Form Number: ETA–586. 

Affected Public: State Governments. 

Estimated Number of Respondents: 

53. 

Estimated Total Annual Burden 

Hours: 848. 

Estimated Total Annual Costs Burden: 

$0. 

Description: Section 3304(a)(9)(B), of 

the Internal Revenue Code of 1986, 

requires states to participate in an 

arrangement for combining employment 

and wages covered under the different 

state laws for the purpose of 

determining unemployed workers’

entitlement to unemployment 

compensation. The Interstate 

Arrangement for Combining 

Employment and Wages for combined 

wage claims (CWC), promulgated at 20 

CFR 616, requires the prompt transfer of 

all relevant and available employment 

and wage data between states upon 

request. The Benefit Payment 

Promptness Standard, 20 CFR part 640, 

requires the prompt payment of 

unemployment compensation including 

benefits paid under the CWC 

arrangement. The ETA–586 report 

provides the ETA/Office of Workforce 

Security with information necessary to 

measure the scope and effect of the 

CWC program and monitor the 

performance of each state in responding 

to wage transfer data requests and the 

payment of benefits. For additional 

information, see related notice 

published at 72 FR 68594 on December 

5, 2007. 

Agency: Employment and Training 

Administration. 

Type of Review: New Collection 

(Request for a new OMB Control 

Number). 

Title: High Growth and CommunityBased Job Training Grants. 

OMB Control Number: 1205–0NEW. 

Form Number: ETA–9134. 

Affected Public: Private Sector: Notfor-profit institutions. 

Estimated Number of Respondents: 

272. 

Estimated Total Annual Burden 

Hours: 53,464. 

Estimated Total Annual Costs Burden: 

$0. 

Description: This information 

collection request is to implement new 

reporting requirements for ETA’s High 

Growth Job Training Initiative (HGJTI) 

and the Community-Based Job Training 

Grants (CBJTG). ETA will require 

grantees to submit standardized 

quarterly reports summarizing the 

number and types of participants served 

by grantees, the number of exiters, the 

number of participants engaged in 

training activities, and some participant 

outcomes. To calculate the common 

measures for each grantee and for the 

program as a whole, ETA will also 

require grantees to submit quarterly 

participant records for exiters that 

contain the minimum number of 

elements needed to obtain the 

information to calculate the common 

measures. ETA plans to use these 

records to obtain wage record 

information from the Wage Record 

Interchange System (WRIS), which in 

turn ETA will use to compute common 

measures. These reports and records 

will help ETA gauge the effects of the 

HGJTI and CBJTG grants, identify 

grantees that could serve as useful 

models, and target technical assistance 

appropriately. ETA’s statutory and 

regulatory authority to administer these 

programs includes provisions for the 

requirement of performance reporting 

from grantees. The legislative authority 

for these programs comes from the 

Workforce Investment Act (29 U.S.C. 

2801 et seq.) and the American 

Competitiveness in the Twenty-first 

Century Act of 2000 as amended, both 

of which authorize and/or require that 

ETA collect information from grantees 

regarding program performance and 

participant outcomes. 

Darrin A. King, 

Acting Departmental Clearance Officer. 

[FR Doc. E8–3740 Filed 2–27–08; 8:45 am] 

BILLING CODE 4510–FM–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Request for Certification of 

Compliance—Rural Industrialization 

Loan and Grant Program 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Notice. 

SUMMARY: The Employment and 

Training Administration is issuing this 


rwilkins on PROD1PC63 with NOTICES